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

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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.

Chessboard(s): Hunter Biden’s Replies

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I’m going to write two posts on Hunter Biden’s reply motions in his gun case. Here are all the relevant filings:

Motions to dismiss

Information collection motions

This post will address the point I made here: Abbe Lowell is managing eight different legal challenges for Hunter Biden that, with the exception of the Patrick Byrne defamation suit, all interrelate. He seems to be managing them to optimize timing and information collection.

This totally ugly illustration captures how I’ve begun to think of these (anyone remember Howard Johnson motels?).

The most immediate threat against Hunter Biden is the stuff in the middle: the threat of imprisonment in the (so far) twin prosecutions of him; I’ve included a column to allow for the possibility that David Weiss is still considering more. But that threat exists within — indeed, Lowell argues in his selective prosecution motion, was demanded — as part of the larger GOP impeachment and election effort. Lowell has responded to those threats with lawsuits — a countersuit against John Paul Mac Isaac, hacking lawsuits against Garrett Ziegler and Rudy Giuliani (all three are marked in blue), and a gross negligence lawsuit against the IRS (in green) — that will or may provide a second way of collecting information, outside the prosecutions.

For example, countersuing JPMI provided a way to get the data the blind computer repairman had shared with the FBI and the rest of the world, as well as to subpoena Apple (data obtained in discovery may parallel that subpoena). The judge in that case has stayed some nuisance subpoenas from JPMI targeting Hunter’s family, and dueling motions for summary judgement are all briefed for a hearing. If Lowell succeeds with his argument that JPMI violated Delaware law by snooping through a laptop the computer repairman claims was dropped off by Hunter Biden before sharing it with the FBI and the GOP, it would destabilize Weiss’ prosecutions (both of which, given the December warrant, build off it) and impeachment (in which the GOP has been relying on a hard drive they were withholding from Democrats). Not only did that countersuit make lawsuits against Rudy Giuliani and Garrett Ziegler possible, but if Lowell prevails, then those lawsuits will become a lot more precarious for the men who destroyed Hunter’s life if those suits survive a joint motion to dismiss hearing — largely based on venue and the applicability of Lowell’s hacking theory — in March.

That’s important background to the new motion to compel filed yesterday, which follows on two other efforts to gather information — a motion to subpoena Trump and others, and a motion for discovery. Among other things, that motion asks David Weiss to describe specifically where in the Apple data his team obtained the texts cited in his response to Hunter’s selective prosecution claim. As I alluded to yesterday, not only do the July 2020 warrants almost certainly build off the laptop in a way that Weiss seems to be trying to obscure, but the way in which and timing that devices were embedded within the laptop may pose some interesting legal problems for the government, particularly given that the warrants aspire to obtain attribution information that (thus far at least) Weiss’ team seems blissfully unconcerned with. While that same motion suggests it is seeking expert reports about the gun, if Weiss plans to rely on evidence obtained directly or indirectly from the laptop, he’s going to have to call the guy who, JPMI claims, was trying to boot it up before obtaining a warrant on December 9, 2019, as well as the “computer guy” who didn’t bother to check when files were added to the laptop for 10 months after receiving it, precisely the kind of attribution information that would be critical to actually admitting any of it as evidence.

Relatedly, Lowell has also promised a motion to suppress the laptop evidence.

The search warrant on December 4, 2023, which post-dates the firearm indictment by almost three months, is the first time in the course of this five-year investigation that DOJ obtained a warrant to search the alleged laptop (and iCloud account and backup data) for evidence of federal firearms violations. The prosecution then used that warrant to purportedly review and seize, for the first time, text messages, photos, and other evidence in support of its felony charges, several of which the prosecution cited in its pleadings on January 16, 2024. (See DE 68 at 8–9.) Moreover, that warrant contained 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. Accordingly, the issue raised—as a result of the prosecution’s recent filings—is one to explore at the evidentiary hearing Mr. Biden requested (DE 64) and a motion to suppress which will be filed promptly.

Partly, this motion to suppress will be a complaint about Weiss’ post-indictment use of a California grand jury in this case (a complaint that, by itself, likely wouldn’t work). But there are other parts of even what I can see in the warrant that make it ripe for challenge. At the very least, defending a motion to suppress will force the government to commit to certain technical claims that, thus far at least, they appear to be dodging.

The motion to compel also asks Judge Noreika to get a commitment from Special Counsel that they have provided all Brady evidence. As it is, Weiss’ team is adhering to a far stingier discovery standard than Jack Smith is and Robert Mueller and the post-Mueller Mike Flynn challenge did. But there are things out there — the most notable of which is the Perfect Phone call between Donald Trump and Volodymyr Zelenskyy, the most important of which are the threats that David Weiss and his team received before he reneged on a plea deal — that Lowell likely can argue are solidly Brady which, from the sounds of things, Weiss has not provided. Lowell has, thus far, not called out Derek Hines for claiming it would take a Hollywood plot to explain how the political pressure ginned up by a guy who has elicited dangerous threats against every prosecutor and judge deemed to be adversarial to him might have led David Weiss to renege on a deal. Hines’ silence about those threats basically amounts to license, given by an AUSA, for stochastic terrorists to target all his AUSA colleagues. I’ve been puzzled that Lowell has never mentioned these threats — except in passing in the selective prosecution reply — but wonder whether Lowell is simply leaving it there for Weiss to fail to mention with the repercussions that will have on the case.

Litigating a motion to suppress and a motion to compel will also delay any trial in this case, assuming none of these motions to dismiss work. Those are not Lowell’s only bid for delay. In the reply challenging that the gun charges against him are unconstitutional, Lowell responded to Weiss’ optimism that SCOTUS will review other gun cases by bidding to stay the entire gun trial: “this Court should await that guidance from the Supreme Court before allowing this case to proceed to trial.” That’s probably not going to work, but Lowell’s Bruen-related challenge will ensure that Weiss can’t close up shop until the constitutional question is decided. More interestingly, given the tight schedule Judge Mark Scarsi has set in the Los Angeles case, with a trial scheduled for June, delays in Delaware (assuming the case is not dismissed) could have the effect of putting the tax case before the gun case.

As I’ll show in a post on the selective prosecution claim, such a claim may work better in the tax case than the gun one.

Potential delay may be one point of Lowell’s challenge to both the manner of David Weiss’ appointment as Special Counsel and his funding for it. In his reply, Lowell claims that Weiss has responded to the challenge by arguing that Weiss would have been able to prosecute Hunter as US Attorney for Delaware, so there’s no legal problem with doing so as Special Counsel.

In response to both the lack of authorization and lack of appropriation issues, the Special Counsel claims the Court should let him go ahead and prosecute this case in the wrong way because he believes he could find a right way to prosecute the case if he wanted to. Opp. at 20. With respect to his lack of authorization to bring the case as Special Counsel, Mr. Weiss claims that he could have brought the case in his capacity as U.S. Attorney even though he did not. Opp. at 22– 23 (conceding that he signed the indictment as “Special Counsel,” rather than bringing it in his capacity as U.S. Attorney). Perhaps Mr. Weiss could resign as U.S. Attorney and seek to be reappointed as Special Counsel, consistent with DOJ regulations, and then seek to indict Mr. Biden again. Perhaps he could find a way to prosecute this case with the costs and expenses of gathering new evidence that was not obtained in violation of the Appropriations Clause as well (see supra at 15). But such issues are premature as he has done none of those things. It is telling that Mr. Weiss’s last argument is that, if all else fails, he can put back on his U.S. Attorney hat, change the nameplate on his door, and start again

But that’s the point of the appropriations clause aspect of the challenge; Lowell argues that Weiss would have to go back and collect new evidence (testing the pouch the gun was found in for cocaine residue, getting new grand jury testimony, and getting a warrant to use laptop content for the gun crimes) without violating the appropriations clause. I don’t like this motion nor do I think it will work. But by making an appropriations clause challenge, Lowell may be able to enjoin certain things — like issuing a final report, replete as John Durham’s was with fabrications — until any appeals are exhausted.

Which brings me to the claim that the diversion agreement must be honored and the related discovery motion. Those are the arguments I’ve always thought stood the best chance (though the briefing on it has devolved into a squabble about language). In the body of the latter argument, Lowell notes that Weiss’ claims he was always considering charging Hunter doesn’t defeat Hunter’s claims, because he ultimately decided not to, before he changed his mind for no apparent reason.

The prosecution’s response to Mr. Biden’s motion to dismiss for selective and vindictive prosecution further confirms the need for discovery should the Court not dismiss the indictment outright. The prosecution claims that its reasons for charging this case were based on “overwhelming evidence” (DE 68 at 2, 24) it obtained in 2019 and 2021, and on the unexplained “deterrent effect” (DE 68 at 33, 40–41) that it claims this prosecution of Mr. Biden serves. And the prosecution suggests “it had been considering” charging Mr. Biden “long before plea negotiations began.” (DE 68 at 17, 40, 48.) But this explanation is entirely pretextual because— even with all these factors in play—the prosecution still determined that the appropriate resolution was a diversion on the gun charge and a probationary sentence on two tax misdemeanors. The prosecution even signed a Diversion Agreement and Plea Agreement to that effect, and openly advocated for the Court to adopt the Plea Agreement at the July 26, 2023 hearing. What the prosecution has not explained is why it deemed this agreed upon resolution of its issues with Mr. Biden appropriate on July 26, 2023, but chose to abandon that approach and charge Mr. Biden with multiple gun and tax felonies afterward. It is undisputed that extremist Republicans criticized the prosecution’s deal heavily, and since then, House Republicans have declared that pressure is what caused the prosecution to reverse course. The fact that the prosecution’s explanation for its charging decision does not explain why it chose to change its proposed resolution of the dispute does nothing to show those House Republicans are wrong to claim causing the prosecution to reverse course.

Then a completely predictable footnote notes that the efforts to collect new evidence after indicting raise more questions about Weiss’ claims than they answer.

1 The prosecution’s opposition briefs reveal some new evidentiary issues (e.g., seizing electronic evidence for the gun charges for the first time pursuant to a December 4, 2023 warrant; using a grand jury in California in connection with the tax case to elicit evidence for already-indicted gun charges in Delaware; seeking a search warrant in December 2023 to search for evidence in support of its charges three months after having charged; testing a leather pouch for cocaine residue in October 2023 that it had in its possession for five years; denying there was Probation’s approval for the diversion agreement) in addition to those raised in Mr. Biden’s motions to dismiss themselves (e.g., how a Delaware agreement for a diverted gun charge and two tax misdemeanors turned into multiple felonies in two jurisdictions following massive political pressure to do just that). Based on the prosecution’s admissions made only recently in its filings, Mr. Biden will expeditiously file a motion to suppress improperly gathered evidence.

This is what I pointed out: Admitting that you never sent the gun to the lab until weeks after indicting the case is a confession that you were never really going to prosecute it until Jim Jordan demanded you do so.

And the excuse offered in the filing — that an FBI agent first saw cocaine residue when taking a picture of the weapon — is debunked by the fact that Weiss received photos of the weapon in the case file he has had for years.

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 didn’t need a new photo. They have photos! They needed evidence they didn’t bother to seek in the over five years since the gun was seized.

But all that comes against the background of three arguments about how and why the plea deal fell apart, something that Weiss has very assiduously avoided. In the diversion reply, Lowell argues that judicial estoppel prohibits Weiss from claiming the diversion agreement is not valid because Leo Wise stood before Judge Noreika and made assurances about the degree to which the diversion would protect Hunter’s rights. In the selective prosecution reply, Lowell reminds Judge Noreika that her concerns with the plea deal were not that it was not draconian enough, but rather, whether Hunter would be protected to the extent he understood he would be.

The Court did not accept the Plea Agreement that day, but the Court was clear: “I’m not saying I’m not going to reject the plea, I’m not saying I’m going to accept the Plea Agreement. I need more information.” (7/26/23 Tr. at 109.) The Court expressed no concern with whether the parties had struck a fair bargain, rather the concern the Court expressed to Mr. Biden was with “making sure that your plea gets you what you think it gets.” (Id. at 108.) The Court wanted assurances that the immunity provision in the Diversion Agreement that would have the Court decide whether Mr. Biden had breached his obligations under the Diversion and Plea Agreements before the prosecution could charge Mr. Biden with conduct that would otherwise be immunized was constitutional. (Id. at 105–06.) In other words, the Court’s concern was with making sure that Mr. Biden received the benefit of the bargain that he struck, not with changing that bargain to be more punitive against Mr. Biden.

At the end of that filing, Lowell describes how David Weiss sat in the back of Judge Noreika’s courtroom, watching Leo Wise advocate for measures (negotiated by Lesley Wolf before Wise was brought in) to protect Hunter.

On July 26, 2023, Mr. Weiss sat right behind his prosecution team when they urged this Court to accept those agreements.

As of today, the motion for a subpoena for Trump has been fully briefed for 50 days, but Judge Noreika has not addressed it.

Indeed, the only thing we’ve heard from Judge Noreika since she granted Lowell’s request for a delay to do all this briefing on October 19 was her order granting my request to unseal the Apple warrants in this case (And thanks to Judge Noreika and her courtroom deputy and the clerks who scrambled to make it possible for doing so). That is, it’s not clear yet what she makes of these competing arguments.

But it is absolutely the case that Leo Wise stood before her and made certain representations about the plea deal. And my impression at least accords with Lowell’s: that her concerns arose from protecting Hunter Biden’s rights, not granting Jim Jordan the head of the President’s son.

Judge Noreika could just rule that the diversion agreement is binding (which as noted in my ugly table, will have interesting repercussions for the LA case). She could order an evidentiary hearing, granting the long-briefed motion for subpoenas.

Based on reports, in the initial appearance in the LA case, Judge Scarsi implied he’d be cautious against granting discovery about deliberations (presumably including the recommendation Los Angeles US Attorney Martin Estrada’s top prosecutors made about problems with the case). But he sounded more amenable to discovery about other topics — possibly the threats that Derek Hines treats as a Hollywood plot, including threats targeting Estrada.

In three weeks, Abbe Lowell will file most of these same motions before Scarsi, and if any work — especially the selective prosecution one — it might make the Delaware one unsustaintable as well.

Again, I’m not saying these will work. Selective prosecution has been made all but impossible to argue, for example.

But I am saying that Lowell is increasing his chances for success.

Hunter Biden Reply Motions to Dismiss

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As a few of you have noted, Hunter Biden has filed his replies on his motions to dismiss.

As I noted on Xitter, the Reply on Discovery confirms I was right when I pointed out that the Coke-in-Gun ploy actually undermined David Weiss’ argument.

They never bothered to send the gun out for testing until October 2023 — five years after local authorities decided not to charge this.

I’m finishing up my initial review and will comment at more length, but here are all these filings:

In addition, Abbe Lowell filed a motion to compel.

IRS First Received Hunter Biden’s iCloud Data on Same Day White House Released the Perfect Phone Call

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The Delaware District Courthouse has unsealed much of what Judge Maryellen Noreika ordered unsealed last week. The major piece still outstanding are the Attachments for the most recent warrant describing the crimes they’re investigating and the things they’re permitted to seize, which is actually one of the most important things I was seeking to have unsealed.

The story the warrants generally tell is that investigators obtained Hunter Biden’s entire iCloud account on September 25, 2019, literally the same day it became clear Donald Trump had demanded an investigation into Hunter Biden. Then they got the laptop. The laptop led them to discover four device backups of interest. In summer 2020, they obtained warrants specific to those devices to access data already in hand.

And then, years later, 81 days after charging Hunter Biden for gun crimes, they obtained a warrant to search all that same digital evidence for evidence of gun crimes.

They really are claiming they didn’t think to search all the data they had for evidence of gun crimes until after they had the indictment in hand, 81 days after they indicted the President’s son. That is, at least for the moment, they are claiming that they never bothered to check for gun crime evidence in Hunter Biden’s texts until after they charged him.

And they made that admission in a filing arguing, “oh sure, we’ve been planning on charging these gun crimes for years.”

This late disclosure will undoubtedly raise a lot of questions about whether any of this data was presented to the grand jury (particularly given that Abbe Lowell would only have had notice of this warrant not long before we got it); if it was, it’d strongly suggest that investigators unlawfully searched Hunter’s data for gun crimes. Though thus far, that’s the most likely way any of this becomes illegal under the very generous precedents for criminal investigators.

Before I look more closely at what the individual warrants show, remember that these are not the only warrants. We know from this filter document Joseph Ziegler shared, for example, that investigators also searched this same data for FARA crimes — so there are almost certainly a parallel sent of warrants for those crimes. There are known warrants, such as for the Google account tied to Hunter’s Rosemont Seneca email, for other content that would have been less interesting for the gun crimes. There’s some epic funkiness with the treatment of the laptop.

But this is the story David Weiss has decided he can bring to a jury: that investigators obtained two parallel sets of Apple data, and very belatedly, literally after they indicted, decided to search it for alleged gun crimes that were committed before they obtained the first warrant.

August 29, 2019: Original iCloud warrant; warrant return

The first warrant unsealed obtained all the content for Hunter’s iCloud account. It permitted the search for evidence pertaining to the three tax crimes charged in Los Angeles: 26 USC 7201, 26 USC 7203, and 26 USC 7206(1) (though the probable cause statement could not have covered those charges for 2018, the primary tax year charged, as those alleged crimes had not been committed yet).

It asked for the entire content of the iCloud account, from January 2014 through the present; I originally questioned how they could show probable cause to obtain information from 2018 and 2019, as no tax crimes could have been committed yet in those years, but realize that so long as Hunter hadn’t paid his earlier tax years, the willful failure to pay continued.

The warrant did not mention Burisma by name, though Burisma might be covered under permission to search for evidence about business operations. The warrant did not mention the sex workers on which this entire investigation was predicated, but those would be covered under “personal expenditures.”

The warrant only asked for content related to one of the several email addresses Hunter used with Apple, RHBDC at iCloud, though probably got everything in response under Apple’s normal response to legal process. That could become pertinent later.

Here’s how Derek Hines described it in his response filing that first identified these warrants:

In August 2019, IRS and FBI investigators obtained a search warrant for tax violations for the defendant’s Apple iCloud account. 2 In response to that warrant, in September 2019, Apple produced backups of data from various of the defendant’s electronic devices that he had backed up to his iCloud account.

2 District of Delaware Case No. 19-234M

There are three things of interest in Hines’ description. He emphasizes that both the FBI and IRS were on this warrant, which might be an attempt to cover later plain view expansions of this investigation. He suggests, inaccurately, that the warrant focused on backups from Hunter’s phone, which is likely because he only wants to introduce texts at trial, not emails.

Most interestingly, Hines notes that the warrant was served in August but the data was returned in September.

The warrant shows that before investigators filed for a warrant in August 2019, they twice preserved Hunter’s data, on April 11, 2019 (which is the day Joseph Ziegler submitted his tax package to DOJ Tax for approval to open a grand jury investigation), and July 11, 2019.

The docket itself shows that Magistrate Judge Sherry Fallon issued a Magistrate’s order on September 12 (which remains sealed). That suggests that Apple may have challenged this warrant, delaying the return of the content until after that.

We may learn more about the content of this order in motions in the Los Angeles case (though once it was issued, investigators would be working under a Good Faith exception). As the July 2020 warrant reveals, Apple turned over the content on September 25, 2019 — the very day the White House would release the Perfect Phone Call revealing that Trump had been demanding an investigation into Hunter Biden personally.

On August 24, 2020, investigators sought a renewal of the original order sealing the docket. At least from what got unsealed, that’s the only actual renewal of sealing orders investigators ever got.

December 13, 2019: Original laptop warrant; warrant return

The second warrant obtained authorized the search of the laptop turned over from John Paul Mac Isaac. Here’s how Hines explained it:

Investigators also later came into possession of the defendant’s Apple MacBook Pro, which he had left at a computer store. A search warrant was also obtained for his laptop and the results of the search were largely duplicative of information investigators had already obtained from Apple. 4

4 District of Delaware Case No. 19-309M

It was actually served by the FBI agent who served the subpoena on JPMI on the CART guy.

Mike Waski may know details of how — according to JPMI — the laptop came to be accessed four days before this warrant. Or he could be “computer guy” who didn’t bother to validate the content of the laptop for over 10 months.

In their (absolutely atrocious) coverage of these warrants, NYPost claimed to have seen an earlier warrant.

A third search warrant was obtained Dec. 13, 2019, to examine the now-first son’s infamous Apple MacBook Pro laptop and a hard drive — the same one containing a copy of Biden’s laptop that computer store owner John Paul Mac Isaac made to give to Rudy Giuliani’s lawyer Robert Costello, an earlier warrant reviewed by The Post shows.

Given that the rest of Priscilla DeGregory’s story betrays not the remotest inkling of understanding of what she’s looking at, McGregory may be thinking of the December 9 subpoena to JPMI, but I suspect Abbe Lowell may learn if there’s an earlier one when he points out that according to JPMI, the FBI accessed the content of this laptop before the December 13 warrant, possibly in a way that is forensically unsound.

Attachment B in this warrant is similar to the one in the first warrant. It has this boilerplate paragraph, which would cover the government if they sent Bill Barr a copy on December 14.

But, largely because of the difference between cloud data and devices, it has different language pertaining to attribution.

The iCloud warrant describes it this way:

Hunter is undoubtedly the email account owner. But there is very good reason to believe that between January 1, 2014 and August 29, 2019, Hunter was not the only user. Indeed, this scope of time would cover the compromise that Lev Parnas says happened when Hunter was in Kazakhstan.

Among other things, this language should put the government on the hook for aberrations in Hunter’s iCloud access in advance of treating the laptop uncritically.

Now compare that with the attribution language used on the laptop warrant.

Most expansively, this device was only owned starting in October 2018 (when Hunter no longer owned it and whether he ever owned the hard drive remain very much contested), and I’ve got questions about whether others used it. And JPMI undoubtedly “used” both devices.

Bookmark that detail.

July 10, 2020 iCloud warrant; warrant return

The permission to search for passwords as evidence of “user attribution” could become mildly important given the third warrant which (as I’ve already noted), Derek Hines simply mentions as an afterthought.

a follow up search warrant, District of Delaware Case Number 20-165M.

In July 2020, investigators used this warrant to access content already in their possession tied to four specific devices. The warrant describes clearly that this is the content they received from Apple on September 25, 2019 (again, the same day the Perfect Phone Call transcript revealed that Trump was demanding investigations just like this one). And the warrant clearly shows that the data was stored at the FBI office in Wilmington.

I’ll return to the devices later. With these devices, as with all of Hunter’s iCloud content and devices from the period of his addiction, investigators would need to prove that content on the devices was put there while they were still in Hunter’s possession and that he was the one who backed up the phones.

But what Derek Hines is not telling Judge Maryellen Noreika is that the reason investigators came to have an interest in these four devices is because they accessed the content of those four devices from the laptop.

They got a warrant to access the same content from the Apple production. But they don’t claim to have obtained a warrant to access the same content on the laptop, and we know thanks to Gary Shapley that they only accessed one of these devices using a password they found on the laptop (again, that particular factoid is what sent me down this rabbit hole in the first place).

I’ll come back to the question of whether that’s a problem or not.

December 4, 2023: Post-indictment warrant; warrant return (less attachments) Attachments AB

Finally, there’s the December 4, 2023 warrant, the reason I asked to get these unsealed in the first place.

Law enforcement also later obtained a search warrant to search the defendant’s electronic evidence for evidence of federal firearms violations and to seize such data. 5

5 District of Delaware Case No. 23-507M.

When Derek Hines described this warrant, he tried to hide that by “later” he meant, “81 days after obtaining the indictment,” and — from the submission of the signed return dated yesterday, it appears that Special Agent Boyd Pritchard was still searching this content when the dockets were unsealed yesterday.

As noted above, the Delaware Clerk has not yet complied with Judge Noreika’s order with regards to this warrant. I’m going to see if I can’t get them to do so and if I succeed I’ll add some update. But for now, I can’t compare search protocols with those earlier warrants or see what crimes of which Pritchard said he was search for evidence. [Update: They have now provided the Attachments]

The Attachments basically just trace through the three earlier warrants (iCloud; laptop; backups — though they are not in order), then authorize searching the content for evidence of the gun crimes charged 81 days earlier.

Effectively, three days after a meet-and-confer phone call with Abbe Lowell following up on all the discovery requests David Weiss was blowing off, including these two bullets, they obtained a warrant to access his texts — they claim, for the very first time.

The user attribution could have some interesting repercussions, not least because it’s not clear these devices were “used” by Hunter when the content was added to them.

Of some interest, in the response, Hines didn’t mention the call from Joe Biden telling Hunter to get help reported by the Daily Mail. Since investigators seem to have so little appreciation for what happened with Hunter’s devices before and after the FBI obtained this warrant, they may not understand there’s evidence in the public record that won’t exist on the laptop, which therefore they would not have gotten a warrant to access.

In a different world, the serial discovery of what a mess Hunter’s digital mess was might have led law enforcement officers to start investigating whether there was a reason it was such a mess.

Not these guys. They just decided to take the assist criminals gave them to investigate Joe Biden’s son.

And with regards to the Apple content (it’s likely investigators got Hunter’s Rosemont Seneca account first, which shows even more evidence of deliberate compromise), they first received it on the same day the White House revealed that Trump had extorted Volodymy Zelenskyy for just such an investigation.

Updated with the AB Attachments from the most recent warrant.

Update: Corrected my reference to Matt/Mike.

Update: Corrected Pritchard’s first name now too. [Sigh!]

Parallel Poisons: Derek Hines’ (Mis)Representations about His Post-Indictment Investigation

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As I noted in this post, I confirmed that a warrant that AUSA Derek Hines says he relied on to search Hunter Biden’s iCloud content for evidence of firearms violations was not obtained until December 4, 2023, 81 days after Hines obtained an indictment charging Hunter for those violations.

As I also explained, there’s no reason to doubt that that warrant is lawful. I imagine the affidavit for it simply quotes a bunch of Hunter Biden’s public comments about his addiction to establish probable cause. While it is dickish for a prosecutor to seek evidence that has been readily available for years between charging and trial, so long as he’s not relying on the grand jury that was exclusively focused on investigating that crime, it would be within the bounds of normal dickish prosecutorial behavior.

Where it starts to be a problem is in the way it undermines the argument at hand. In the same filing where he revealed that warrant, for example, Hines leant heavily on representations Chris Clark made, in a letter sent in October 2022, about a call he had in March 2022 (Hines only includes three pages of a 27-page letter; Politico describes the rest to be an extensive description of the political pressure to charge the gun charges), to claim that prosecutors were always going to charge Hunter for gun crimes, even before Jim Jordan demanded those charges.

During the course of discussions between counsel for the defendant and counsel for the government, in a letter dated October 31, 2022, from Mr. Biden’s prior counsel to government counsel, the defense wrote:

Since December 2020, nearly all of our meetings, phone calls, and correspondence with your Office have related to the Government’s investigation of Mr. Biden for possible tax offenses. It was not until a phone call in March 2022—over a year into our cooperative dialogue—that your Office disclosed a potential investigation of Mr. Biden for possible firearms offenses (the “Firearm Investigation”). (footnote)

Exhibit 1 (redacted and includes only relevant pages).

The footnote in the letter stated, “Your Office informed us that the implic ated Title 18 provisions are Sections 922(g)(3), 922(a)(6), and 924(a)(1)(A).” Id. (emphasis added). The defense later released their letter to selected media outlets, 7 but the defendant did not include it in his materials filed with the Court in support of his motion to enforce the diversion agreement. The letter the defense sent in October 2022 shows that the defense was aware that the government was considering all of the charges later returned in the indictment, see Section I.G., as of March 2022. This directly refutes that the charges returned by the grand jury were the product of various statements by out-of-office politicians in 2023, as the defendant claims. [emphasis original]

In October 2022, prosecutors could still and likely were relying on content available on the laptop (including, per Daily Mail, a voice mail from Joe Biden on October 15, 2018 telling Hunter to get help). But in November 2022, John Paul Mac Isaac published a book claiming, among other things, that the FBI was attempting to access the laptop on December 9, 2019, four days before the warrant David Weiss is relying on here, meaning any reliance on the laptop would pose significant problems at trial (even before you consider some forensic problems I’m still trying to nail down).

Here’s the passage from JPMI’s book — it becomes important below:

Agent Wilson eventually shook my hand, saying, “Let us know if anyone comes looking for it. Call us immediately.” “What should I tell them?” I asked, hoping the conversation would never arise.

“Tell them you keep abandoned equipment offsite, like a warehouse location,” Agent DeMeo answered, taking over. “Tell them it will take a day for you to check and they should call back the next day. Then immediately text me at my cell number. From now on, only communicate through my cell number. Not Agent Wilson, just me. We need to avoid communicating through, ah, normal channels. I’m sure you can understand. Text me and we will get the equipment back to you and deal with the situation.”

[snip]

I went home and called my father. I was relaying the facts when an incoming call notification showed up: Agent DeMeo.

“I’ll have to call you back. I have one of the agents calling in,” I told my father before switching calls.

“Hello, this is John Paul,” I said.

“Hi, my name is Matt,” said a voice I didn’t recognize. “I work with Agent DeMeo and Agent Wilson. Do you have a second? I have some questions about accessing the laptop.”

Confused, I responded, “Sure, what’s going on?”

“Did the laptop come with any cables or a charger? How can I connect the drive to a PC? When I plug it in, it wants to format the drive,” Matt said.

“PCs can’t natively read Mac-formatted disks. You will only be able to access the drive from another Mac.”

This is fairly common knowledge among most computer users, and I was surprised that any kind of tech person wouldn’t know it.

“Sadly, Hunter never left the charger or any other cables,” I went on. “I have a charger and everything you need back at the shop. You guys are welcome to it.”

I was feeling really uncomfortable. This Matt guy definitely didn’t seem to have the training or resources to be performing a forensic evaluation of the laptop. Hadn’t the whole reason for taking the laptop been to get it to a lab for proper evaluation and dissemination?

“Tell him we’re OK and we won’t need to go back to his shop,” Agent DeMeo said in the background. “We’ll call you back if we need to,” Matt said before hanging up.

[snip]

“Hi, it’s Matt again. So, we have a power supply and a USB-C cable, but when we boot up, I can’t get the mouse or keyboard to work.”

I couldn’t believe it—they were trying to boot the machine!

“The keyboard and trackpad were disconnected due to liquid damage. If you have a USB-C–to–USB-A adaptor, you should be able to use any USB keyboard or mouse,” I said. He related this to Agent DeMeo and quickly hung up.

Matt called yet again about an hour later.

“So this thing won’t stay on when it’s unplugged. Does the battery work?”

I explained that he needed to plug in the laptop and that once it turned on, the battery would start charging. I could sense his stress and his embarrassment at having to call repeatedly for help. [my emphasis]

So this warrant was likely just parallel construction, an effort to make evidence already in hand admissible at trial. That’s also considered perfectly legal, just another of the dickish prosecutorial tactics considered normal.

But Derek Hines can’t very well tell Judge Maryellen Noreika that the guy who gave the FBI the laptop would testify, if called as a witness, that the FBI was, “trying to boot the machine!” before obtaining a warrant for it. Or at least before obtaining this warrant, the December 13, 2019 warrant that Hines claims to be relying on.

So instead, Hines told her that they first obtained a warrant to search for content on December 4, 2023, 81 days after obtaining an indictment.

The process of parallel constructing that content, if that’s what happened, now helps Abbe Lowell make the case that prosecutors weren’t really considering charging the gun crimes until Jim Jordan demanded they do so, because Hines has implied to Judge Noreika that they didn’t obtain a warrant to search for evidence of that crime until … after they indicted.

Things get worse from there. According to an unrebutted claim Lowell made in his December 11 motion for discovery, ten days before Lowell filed that motion, Hines responded to Lowell’s inquiry about whether he should expect, “any additional productions in the near-term,” by stating he would, “let the discovery stand for itself.”

During a meet and confer phone call on December 1, 2023, Mr. Biden’s counsel even asked Messrs. Wise and Hines for a status update of the prosecution’s discovery, and specifically whether the government intended to make any additional productions in the near-term or respond to our various discovery request letters, to which Mr. Hines responded that the government would “let the discovery stand for itself.”

Hines told Lowell, ten days before Lowell’s motions were due, that the discovery spoke for itself.

And then, three days later, he went and got a new warrant for content he wants to use at trial against Hunter Biden.

Note that, in the passage that discloses these warrants, Hines doesn’t say that he provided Lowell the warrant before his motions deadline? He only claims to have given Lowell the content, “in advance of the deadline to file motions.”

In August 2019, IRS and FBI investigators obtained a search warrant for tax violations for the defendant’s Apple iCloud account. 2 In response to that warrant, in September 2019, Apple produced backups of data from various of the defendant’s electronic devices that he had backed up to his iCloud account. 3 Investigators also later came into possession of the defendant’s Apple MacBook Pro, which he had left at a computer store. A search warrant was also obtained for his laptop and the results of the search were largely duplicative of information investigators had already obtained from Apple. 4 Law enforcement also later obtained a search warrant to search the defendant’s electronic evidence for evidence of federal firearms violations and to seize such data. 5

2 District of Delaware Case No. 19-234M and a follow up search warrant, District of Delaware Case Number 20-165M.

3 The electronic evidence referenced in this section was produced to the defendant in discovery in advance of the deadline to file motions.

4 District of Delaware Case No. 19-309M

5 District of Delaware Case No. 23-507M. [my emphasis]

You need to cross-reference this passage with Hines’ response to Lowell’s discovery request to discover that Hines doesn’t claim to have given Lowell anything after obtaining the December iCloud warrant until January 9, almost a month after the motions deadline.

On October 8, 2023, the defendant made a request for discovery under Federal Rules of Criminal Procedure 16.

On October 12, 2023, the government provided to the defendant a production of materials consisting of over 350 pages of documents as well as additional electronic evidence from the defendant’s Apple iCloud account and a copy of data from the defendant’s laptop. This production included search warrants related to evidence the government may use in its case-in-chief in the gun case, statements of the defendant including his admissions that he was addicted to crack cocaine and possessed a firearm in 2018, and law enforcement reports related to the gun investigation.

On November 1, 2023, the government provided a production of materials to the defendant that was over 700,000 pages and largely consisted of documents obtained during an investigation into whether the defendant timely filed and paid his taxes and committed tax evasion. These documents included information of the defendant’s income and payments to drug and alcohol rehabilitation programs in 2018, the same year in which the defendant possessed the firearm while addicted to controlled substances.

On December 7, 2023, a grand jury in the Central District of California returned an indictment (hereafter the “tax indictment”) charging the defendant with the following tax offenses:

[snip]

In advance of his initial appearance on the tax indictment, the government made a production of materials to the defendant on January 9, 2024, which included over 500,000 pages of documents and consisted of additional information related to the tax investigation. [my emphasis]

That is, in his selective and vindictive response, Hines has suggested to Judge Noreika that Lowell had the opportunity to suppress content. But in his discovery response, Hines seems to suggest that he didn’t provide Lowell the warrant that he would need to suppress until after the motions deadline passed, in language that implies the January 9 discovery pertained exclusively to the tax case, and not the gun case.

Before I get into where Hines may really have created a problem for himself, let’s consider how it is possible that Hines could have provided Lowell with “the electronic evidence referenced in this section” before he had obtained a warrant to find it.

See the language I’ve turned red? On October 12, Hines gave Lowell,

  • Additional electronic evidence from the defendant’s Apple iCloud account
  • A copy of data from the defendant’s laptop

The texts he quotes in the filing may well be in both of those, the iCloud account and the laptop. They definitely were on the laptop; that’s where the Daily Mail got them.

It’s the iCloud content where things get interesting (but not yet to where Hines really created a problem for himself — not yet). When the FBI gets a warrant, they get everything, and then can search for the stuff that fits within their scope. So in either 2019 or — more likely — 2020, they got everything in Hunter’s iCloud from 2018. Often, prosecutors will give defendants both a complete and a scoped version of evidence, basically, “here’s everything Apple had on you, and here’s the stuff that complied with our warrant.”  So it could just be that Hines provided Lowell with Hunter’s iCloud and that’s the basis for saying that Lowell had everything before the motions deadline.

But Hines implies that the iCloud content he turned over on October 12 was scoped, pertinent to the gun crime.

If that’s right, it means Hines had a different warrant than the December 4, 2023 one authorizing the search of content for gun crimes. It’s possibly the one, 20-165M, he describes in a footnote but doesn’t explain in the text, the one that would have come after relying on the laptop for seven months without doing much due diligence on it. If so, we’ll learn that when the warrant actually gets unsealed on Monday; something to look forward to! Or, it’s possible there’s one from 2021 or 2022 that Hines doesn’t want to talk about, not to us and not to Judge Noreika.

It’s like that it’s not so much that prosecutors hadn’t already gotten the evidence to charge Hunter with gun crimes, it’s that they had to get a new warrant to make it admissible at trial without giving Lowell cause to subpoena JPMI to describe how the FBI told him they were booting up Hunter Biden’s laptop on December 9, 2019, before they got a warrant.

Or at least before they got this warrant.

If Judge Noreika were to ask about the confusion, Hines might just explain that they got a warrant relying on the laptop obtained in good faith, but have since gotten a new warrant to ensure it’s all kosher. Mind you, along the way, he might have to explain that something Abbe Lowell said on that phone call on December 1 — possibly following up on the discovery request he made on October 8 for any record of communications with John Paul Mac Isaac — led him to run out and get a new warrant that didn’t rely on the laptop.

Any documents and/or information reflecting communications (whether oral or in writing) between anyone in your Office or any member of the investigative team or their supervisors (including FBI and IRS agents) with John Paul Mac Isaac or any member of his family.

Who knows: Maybe Hines discovered, for the first time, that there were three calls made from Agent DeMeo’s phone to JPMI on December 9, 2019, a phone used, according to JPMI’s description of what DeMeo told him because, “We need to avoid communicating through, ah, normal channels.” Maybe Hines discovered corroboration for JPMI’s claim that the FBI was booting up Hunter Biden’s laptop four days before obtaining a warrant. Or at least before obtaining the warrant dated December 13, 2019.

Believe it or not, if they had a warrant — say, one obtained by Bill Barr’s office in advance of the time his Chief of Staff sent him a text on December 14 saying, “Laptop on way to you” — all this still might fly. There is a great deal of dickishness that prosecutors routinely get away with.

Where prosecutors get in trouble is not collecting evidence after indicting and not in parallel constructing evidence and not in relying on dodgy warrants so long as they were obtained in good faith — prosecutors get away with that kind of dickishness all the time!

Where prosecutors get in trouble is in misleading judges. And I have to believe that Judge Noreika might not look too kindly on Hines’ claim, in his discovery filing, that suggested he turned over the warrants “related to evidence the government may use in its case-in-chief in the gun case” on October 12, as if he turned over all the warrants relating to the gun case.

This production included search warrants related to evidence the government may use in its case-in-chief in the gun case,

He obviously couldn’t have turned over all the warrants relating to the gun case on October 12, because he hadn’t obtained the one he claims he is relying on, not for another 53 days yet!

Derek Hines might get away with obtaining evidence after the indictment and parallel construction and good faith reliance on a warrant that relied on the laptop. That’s all normal prosecutorial dickishness. But if Judge Noreika feels like he implied he turned over all the warrants in one filing even while, in another, he was hiding the fact that he didn’t turn over the warrant he is actually relying on until well after the motions deadline, then Hines might get into hot water.

You can get away with a great deal of prosecutorial dickishness, but you can’t mislead a judge.

Mind you, it may not matter. Whatever is going on, by obtaining a warrant 81 days after indicting Hunter Biden, Hines has created the appearance that he didn’t obtain his best evidence until after rushing an indictment that Jim Jordan demanded, making it more likely that this would be that almost unheard of example where a judge rules there’s reason to question the prosecutors’ decisions.

At the very least, Judge Noreika might just grant Abbe Lowell discovery to try to figure out why Derek Hines got a warrant 81 days after the indictment.

Update: Corrected Judge Noreika’s first name.

Confirmed: David Weiss Only Got a Gun Crime iCloud Warrant 81 Days after Indicting Hunter Biden

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As I laid out here and here, David Weiss’ response to Hunter Biden’s motion to dismiss on selective and vindictive prosecution grounds seemed to rely on a warrant that post-dated the September 14, 2023 indictment charging Hunter with three gun crimes.

Here’s the language in question.

In August 2019, IRS and FBI investigators obtained a search warrant for tax violations for the defendant’s Apple iCloud account. 2 In response to that warrant, in September 2019, Apple produced backups of data from various of the defendant’s electronic devices that he had backed up to his iCloud account. 3 Investigators also later came into possession of the defendant’s Apple MacBook Pro, which he had left at a computer store. A search warrant was also obtained for his laptop and the results of the search were largely duplicative of information investigators had already obtained from Apple. 4 Law enforcement also later obtained a search warrant to search the defendant’s electronic evidence for evidence of federal firearms violations and to seize such data. 5

2 District of Delaware Case No. 19-234M and a follow up search warrant, District of Delaware Case Number 20-165M.

3 The electronic evidence referenced in this section was produced to the defendant in discovery in advance of the deadline to file motions.

4 District of Delaware Case No. 19-309M

5 District of Delaware Case No. 23-507M. [my emphasis]

I asked his spox whether that could possibly be true, but he declined to comment.

So I wrote a letter to Judge Maryellen Noreika seeking to unseal the dockets as judicial records, which would reveal the date.

Judge Noreika ordered the two sides to weigh in.

ORAL ORDER re 73 Letter: IT IS HEREBY ORDERED that, on or before close of business on January 26, 2024, the parties shall provide the Court with their respective positions on the request to unseal the dockets and warrants referenced in the letter 73 . ORDERED by Judge Maryellen Noreika on 1/25/2024. (mdb) (Entered: 01/25/2024)

Both sides have now responded (Abbe Lowell, Weiss), stating they do not oppose the request, so the dockets and some information about warrant scope should soon be unsealed.

But Weiss’ letter confirmed my suspicions:

That last warrant, 23-507M, is the only one he described to authorize searches for gun crimes. He didn’t obtain that warrant until December 4 of last year.

David Weiss has been investigating Hunter Biden for going on six years; he indicted the gun crimes just days before the statute of limitations expired on them.

And in all that time, Weiss had (at least per his description) never obtained a warrant to search the iCloud content he first started getting in August 2019 until December 4, 2023, 81 days after he indicted.

To be very clear: there’s absolutely no reason to believe that the December 4 warrant in any way failed to show probable cause (though the laptop may have tainted the July 10, 2020 warrant for other crimes).

Rather, this totally undermines David Weiss’ arguments about why he reneged on his diversion agreement.

In his filing, he claimed he had been considering charging those crimes for some time before he reneged on the diversion agreement. But if that were true — if it were remotely true he was seriously considering charging the gun crimes before Jim Jordan demanded he do so — then he would have obtained this warrant years before, probably in the 2020 warrant or at the very least after Hunter’s book was published in April 2021.

Update: Corrected Judge Noreika’s first name.

How One New Hampshire Voter and One Politico Journalist Refused to Hold “a Pig … a Womanizer … [an] Arrogant Asshole” Accountable

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Politico has an interesting profile of a two-time Obama voter, who will today become a three-time Trump voter, New Hampshire voter Ted Johnson.

It demonstrates that Johnson is driven by the very same false beliefs that Scott Perry is, which I laid out here.

Johnson admits that Trump is a pig. He even admits some concern about Trump’s stolen documents — before he parrots the false claims he learned on Fox News about that investigation.

And the Mar-a-Lago classified documents case in Florida? It’s the one that gives Johnson a modicum of pause. “You don’t f— around with classified material. Whoever advised him he could have that — he should have gave that s— up,” he said. “But he was being the stubborn, arrogant person that he is.” And he added, “I didn’t like the way the FBI did it. The raid was ridiculous. And that just emboldened me.”

But nevertheless Johnson will vote for the pig … womanizer … arrogant asshole today because he believes that Trump will bring accountability.

“And trust me, the guy’s a pig, he’s a womanizer — arrogant a—–e,” Johnson said of Trump. “But I need somebody that’s going to go in and lead, and I need somebody that’s going to take care of the average guy.”

“But is taking care of the average guy and breaking the system the same thing?” I said.

“Yes,” he said. “Because they’re all in it for themselves.”

“And if you break the system, what does that look like?”

“Accountability,” he said.

Go read it. It’s precisely the dynamic that I’m preparing to write about: how Trump trained people like Scott Perry and Ted Johnson to hate rule of law while calling that disdain for rule of law “accountability.”

But while you’re reading it, watch journalist Michael Kruse’s own blindspot. For much of the article, Kruse lets Johnson babble on, voicing his false beliefs about Trump’s legal woes.

Kruse largely lets Johnson spout those false beliefs unchallenged. But he pushes back when Johnson raises Hunter Biden.

Sort of.

Johnson started talking about “Russia-gate” and “Biden’s scandals” and Hunter Biden. What, I wondered, did Hunter Biden have to do with Nikki Haley? “She’s not going to hold anybody accountable for what they’ve done,” Johnson told me. “People need to be held accountable. That’s why you’ve got to break the system to fix the system,” he said. “Because it’s a zero-sum game right now. And to be honest with you, the Democrats are genius. They did anything they could do to win and gain power, even if they lie, cheat, steal. … What they’re doing is they’re destroying the country. Who could bring it back?” He answered his own question: “Trump’s the only one.” [my emphasis]

Rather than contest Johnson’s premise that Joe Biden has scandals, Kruse instead challenges Johnson as to what Hunter has to do with Nikki Haley.

Then later in the story, Kruse himself raises Hunter Biden as the counterpart of accountability to Trump.

“Accountability is accountability. But they’re throwing so much stuff at this guy, and it’s almost like I’m rooting for him,” he told me. “This is a whole system of government going after one man who, probably, I bet, right now, 85 million people want to be president.”

“But accountability is accountability,” I said.

“Accountability is accountability,” he said.

“Whether it’s Hunter Biden or Donald Trump,” I said.

“But do I trust the system?” he said. “I don’t.”

Kruse himself, who has actually been pretty sympathetic to Joe Biden in the past, likens the President’s son’s alleged crimes to Trump’s coup attempt.

Now, perhaps Kruse allowed Johnson to make all these false claims uncontested simply to let him talk. It’s a useful interview. I shouldn’t gripe.

But adopting Hunter Biden as the counterpart of accountability for Trump is itself a false claim. It’s why I spend so much time calling out shoddy dick pic sniffing stenography.

The record shows that even if everything Republicans allege about Hunter Biden were true (and at this point, DOJ has let statutes of limitation on FARA crimes expire without charges, so it seems that in going-on-six-years of looking, DOJ never substantiated FARA crimes), his actions still wouldn’t come close to those of Paul Manafort, whom Trump pardoned with nary a whisper.

Perhaps a better response to Johnson’s complaints about Hunter Biden would be a question about Trump’s decision to pardon Manafort for doing far worse? How is that accountability? Manafort is the quintessential sleazy insider and he gets a pass.

Plus, the record shows that Trump’s crimes are not a mirror of Hunter’s; rather, Trump’s crimes cannot be dissociated from the charges against Hunter.

The record shows that Trump started pushing Rudy Giuliani and Lev Parnas to gin up an investigation into Hunter Biden no later than December 2018, at such time as Joseph Ziegler was struggling to come up with some excuse to turn non-payment of taxes into a criminal case.

The record according to Johnathan Buma shows that before DOJ opened a grand jury investigation into Hunter Biden, FBI agents on the investigation enthusiastically accepted dirt on Hunter Biden from two Ukrainians that Buma would acknowledge were part of an influence operation.

The record shows that four days after Joe Biden announced he was running for President, DOJ decided the grand jury investigation into Hunter Biden would be in Delaware, where Joe might one day become a target, rather than Washington DC or Los Angeles, where any tax crimes would have happened. Ziegler first claimed, then backed off a claim, that Bill Barr made this decision personally.

The record shows that the first IRS supervisor on this case documented what he viewed to be problems with the predication of it and ongoing political influence into it.

The record shows that Donald Trump extorted Volodymyr Zelenskyy in an attempt to get an investigation into Hunter  Biden and his father. In that same conversation, he asked Zelenskyy to work with both his personal attorney and with Bill Barr to gin up such an investigation.

The record according to Chuck Grassley shows that even while Trump was claiming to care about Burisma corruption, his DOJ shut down an investigation into Mykola Zlochevsky, one that had been opened while Joe Biden was Vice President and Hunter was on the board of Burisma. Grassley says DOJ shut that investigation down in December 2019.

The record shows that the day after DOJ obtained a warrant to access a laptop obtained from John Paul Mac Isaac, Barr’s chief of staff texted him to say, “laptop on way to you.”

The record shows that days later, Bill Barr set up a dedicated channel by which Rudy Giuliani could share dirt he had obtained, including from a known Russian spy and almost certainly from Burisma, such that it could be laundered into the investigation into Hunter Biden.

The record shows that that process resulted in DOJ obtaining an informant report describing a conversation with Zlochevsky. Remarkably, the FBI neglected to write down what date that conversation happened even though that’s how they validated that it did occur, but it almost certainly dates to the period when DOJ was shutting down an investigation into Zlochevsky. The informant report recorded a claim of bribery of Joe Biden that conflicted with claims Zlochevsky had made just months earlier, when DOJ was (per Chuck Grassley) still investigating him.

The record shows that FBI made Steve Bannon associate Peter Schweizer an informant so he could pitch Hunter Biden dirt leading up to the 2020 election.

The record shows that Trump bitched Bill Barr out about the Hunter Biden investigation shortly after the October 14, 2020 NYPost story on the hard drive from Hunter Biden. Days later, Richard Donoghue ordered the Hunter Biden investigators to accept a briefing about that bribery allegation.

The record shows that, shortly before David Weiss used the FD-1023 obtained during the course of Scott Brady’s effort to launder dirt into the Hunter Biden investigation to justify reneging on the plea deal he had agreed to, Bill Barr described being personally involved in the handling of it.

The record shows that, the day after Trump hosted Tony Bobulinski at a Presidential debate, Bobulinski told the FBI things that conflict with his own communications.

The record according to Cassidy Hutchinson shows that shortly after that Bobulinski interview with the FBI, he had a secret meeting with Mark Meadows at which Trump’s Chief of Staff handed Bobulinski something that might be an envelope.

The record shows that, in the same call where Trump threatened to replace Jeffrey Rosen if he didn’t start endorsing Trump’s claims of voter fraud, he also criticized the handling of the Hunter Biden case.

The record shows that Trump repeatedly, publicly, demanded criminal charges against Hunter Biden, including in the January 6 speech that set off an insurrection.

The record shows that when Trump first learned he’d be indicted, he raised pressure on the Hunter Biden investigation.

The record shows that on the day Hunter’s plea deal was released, Trump complained three times, twice suggesting Joe Biden was implicated in this plea deal.

“Wow! The corrupt Biden DOJ just cleared up hundreds of years of criminal liability by giving Hunter Biden a mere ‘traffic ticket.’ Our system is BROKEN!

“A ‘SWEETHEART’ DEAL FOR HUNTER (AND JOE), AS THEY CONTINUE THEIR QUEST TO ‘GET’ TRUMP, JOE’S POLITICAL OPPONENT. WE ARE NOW A THIRD WORLD COUNTRY!”

“The Hunter/Joe Biden settlement is a massive COVERUP & FULL SCALE ELECTION INTERFERENCE ‘SCAM’ THE LIKES OF WHICH HAS NEVER BEEN SEEN IN OUR COUNTRY BEFORE. A ‘TRAFFIC TICKET,’ & JOE IS ALL CLEANED UP & READY TO GO INTO THE 2024 PRESIDENTIAL ELECTION. . . .”

The record shows that, among the other complaints and false claims Trump made about Hunter’s prosecution, one targeted David Weiss and demanded a death sentence.

Weiss is a COWARD, a smaller version of Bill Barr, who never had the courage to do what everyone knows should have been done. He gave out a traffic ticket instead of a death sentence. . . .

The record shows that when Trump attacks people on social media, they get threats, often so bad as to uproot their entire lives.

The record also shows that former President Trump’s words have real-world consequences. Many of those on the receiving end of his attacks pertaining to the 2020 election have been subjected to a torrent of threats and intimidation from his supporters. A day after Mr. Trump’s “IF YOU GO AFTER ME, I’M COMING AFTER YOU!” post, someone called the district court and said: “Hey you stupid slave n[****]r[.] * * * If Trump doesn’t get elected in 2024, we are coming to kill you, so tread lightly b[***]h. * * * You will be targeted personally, publicly, your family, all of it.” Special Counsel Br. 5; see United States v. Shry, No. 4:23-cr-413, ECF 1 at 3 (Criminal Complaint) (S.D. Tex. Aug. 11, 2023). The Special Counsel also has advised that he has received threats, and that a prosecutor in the Special Counsel’s office whom Mr. Trump has singled out for criticism has been “subject to intimidating communications.” Special Counsel Mot. 12.

The record shows that investigators in the Hunter Biden case were, just like prosecutors on Trump’s own cases, threatened in response to manufactured political outrage. That includes David Weiss himself. Here’s how former AUSA Lesley Wolf described those threats.

My desire to serve my community and my country, such a great source of pride, has recently come at significant cost. As a private person, the once routine and mundane details of my life have become the subject of public interest in an invasive and disturbing manner. Far worse, I’ve been threatened and harassed, causing me to fear for my own and my family’s safety.

I mentioned earlier that I recently left the U.S. Attorney’s Office. My decision to do so long predated and was unconnected to the baseless allegations made against me. In fact, I agreed to stay with the office months longer than planned because of my belief that my family and I were safer while I remained an AUSA.

I have no doubt that after today the threats of harassment and my own fear stemming from them will heighten. This not only scares me, but as someone who loves this country, it also breaks my heart.

We are living in a day and age where politics and winning seem to be paramount, and the truth has become collateral damage.

In short, the record shows that Trump was always a part of the Hunter Biden investigation.

I think the record is pretty clear that Hunter Biden owned a gun for 11 days during the worst days of his addiction. The record is pretty clear that as he tried to rebuild his life, it took several years to straighten out his taxes — but less time than it took Roger Stone to straighten out his taxes, even while the rat-fucker was using a shell company to shield his funds from the IRS.

But the story of Hunter Biden’s alleged crimes — the things that Michael Kruse seems to think mirror Trump’s 91 felony charges — is a story that cannot be told (or should not, were journalism engaged in a responsible pursuit), without also telling the story of Trump’s extortion, Rudy’s consorting with Russian spies, Bill Barr’s hijacking of DOJ for partisan purpose, Bobulinski’s seemingly inconsistent story and whatever role the secret meeting with Meadows had in that story, and Trump eliciting dangerous threats against every participant in the legal system who does not bow to his will, including on this case.

I get that journalists believe that the story of Hunter Biden is a story of DOJ holding Biden’s family member accountable for what they gleefully report are real crimes.

But it is, no less than that, a story of Trump crimes, including, possibly, under two statutes that prohibit this kind of pressure explicitly, 26 USC 7217 and 26 USC 7212. The story of Hunter Biden’s prosecution is the story of Trump’s successful going-on-six-year effort to hijack rule of law to target Joe Biden, an effort that builds on years of similar conduct targeting Hillary Clinton.

I’m grateful that Kruse has depicted Johnson’s nonsensical beliefs in all their absurdity. It’s an absolutely critical step in underestanding how Trump taught Republicans to hate rule of law.

But another step is in unpacking how journalists have come to reflexively equate Hunter Biden with Donald Trump, how journalists have come to simply ignore the five years of corruption that Trump and his lawyers engaged in to get us here, how journalists are not remotely curious about details in the public record about this case.

The reflexive equation of Hunter Biden with the President who targeted him for over five years is an equation every bit as manufactured by Donald Trump as Ted Johnson’s pathetic belief that Trump brings accountability rather than the opposite.

Hunter Biden Lost His Phone(s) in the Same Days He Bought a Gun

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Ho hum. Another day, another David Weiss filing that may face significant evidentiary challenges at trial.

In past posts, I have shown how one after another sex worker, payments to whom prosecutors have made central to their allegations that Hunter Biden cheated on his taxes, may pose evidentiary problems if the case goes to trial.

In one case, David Weiss included in the tax indictment the first Venmo payment — and its misleading payment description and Weiss’ likely incorrect date — that Hunter made after two new devices accessed the account, 12 minutes apart, from two different cities. In another, I showed that a sex worker the IRS actually interviewed about her dates with Hunter was among the last people Hunter spent time with before he attempted to reclaim the part of his digital life hosted at Apple, using a laptop that would eventually be found at Fox News pundit-shrink Keith Ablow’s office when the DEA searched it in February 2020.

Even as the IRS spent years scrutinizing Hunter’s digital payments, they appear to have ignored how his digital life faced one after another compromise, most (but potentially not all) undoubtedly arising from the erratic habits of an addict. Those potential compromises should have elicited an entirely different investigative focus, but they also will make any digital evidence obtained from Hunter Biden’s devices difficult and at times impossible to validate for trial.

Take the texts that Hunter Biden sent Hallie in the two days after he purchased the gun for which he has been charged with three felonies, texts that Weiss has admitted he did not seek until last year, apparently only after indicting the President’s son. Prosecutors are very excited about obtaining these texts, after the fact, to prove that Hunter was smoking crack during the days he possessed a gun.

On October 13, 2018, and October 14, 2018 (the day after and two days after he purchased the firearm), the defendant messaged his girlfriend about meeting a drug dealer and smoking crack. For example, on October 13, 2018, the defendant messaged her and stated, “. . . I’m now off MD Av behind blue rocks stadium waiting for a dealer named Mookie.” The next day, the defendant messaged her and stated, “I was sleeping on a car smoking crack on 4th street and Rodney.”

Weiss doesn’t say what time these texts were sent. Nor does he say whether these were telephony or app texts (Hunter was using at least WhatsApp in the period), and if the former, via which phone account.

But it happened on the same days that Hunter was informed that someone, whose name does not otherwise show up in public emails, emailed Hunter to tell him “you left your phone,” followed, after three attempts, by a shared Note that appears to link to a live Apple account (the times here are UTC-3, so one hour ahead of EDT; I hope I’ve adjusted all the times below to EDT).

And, indeed, Hunter does appear to have left his phone — or phones, plural — somewhere, probably the day before he bought the gun.

In those same two days in which those texts were sent to Hallie, there were four different attempts to replace phones via an Asurian protection plan, two of which ended in the delivery of phones he is known to have adopted as his primary phones afterwards, two of which tied to other numbers that ended in uncertain status. In addition to those iPhones he would use to replace his main phones, Hunter (or someone else) accessed his digital identity from a Samsung Galaxy, a rare deviation from Hunter’s commitment to Apple products.

A week later Hunter’s account would begin to be accessed using the laptop that would ultimately end up with the FBI.

The traffic for just those three days looks like this, with the emails from Joey bolded and two key account changes italicized:

October 12, 12:56PM: As you requested, your temporary [AT&T] password is: ****** Use your user ID and temporary password to sign in to your account.

October 12, 12:56PM: Looks like you recently updated the AT&T password.

October 12, 12:57PM: Critical security alert for your linked Google Account, Sign-in attempt was blocked for your linked [RosemontSeneca] Google Account [device not specified]

October 12, 3:25PM: Thanks for using your AT&T Device Protection Plan! Your claim [ending in 431] has been started

October 12, 3:32PM: Thanks for using your AT&T Device Protection Plan! Your claim [ending in 431] has been started

October 12, 3:38PM: Thanks for using your AT&T Device Protection Plan! Your claim [ending in 579] has been started

October 12, 3:40PM: Your [AT&T] insurance claim [phone ending in 96]

October 12, 3:44PM: Your [AT&T] insurance claim [phone ending in 13]

October 12, 3:49PM: Thanks for using your AT&T Device Protection Plan! Your claim [ending in 701] has been started

October 12, 3:55PM: Please complete and return your claim documents Wireless Number: **94

October 12, 3:57PM: Thanks for using your AT&T Device Protection Plan! Your claim [ending in 799] has been started

October 12, 4:03PM: Please complete and return your claim documents Wireless Number: **29

October 12, 5:35PM: Hello. Review your AT&T order

October 12, 6:22PM: Good news. Your replacement device [grey Apple iPhoneX] has shipped. [phone ending in 13]

October 12, 6:24PM: Phone [from Joey]

Hey, You left your phone and other things. Tried to reach you at 202 and 302 all day but no luck. Let me know where to overnight.

October 12, 7:20PM: Good news. Your replacement device [iPhone 8] has shipped. [phone ending in 96]

October 12, 8:00PM: Verify your Samsung account [accessing Hunter’s iCloud]

October 12, 11:31PM: Someone Just Checked Your Background Report

October 13, 7:10AM: You left your phone. How do I get it to you?

joey

October 13, 7:26AM: You left your phone. How do I get it to you?

joey

October 13, 11:13AM: Let’s setup your AT&T replacement device [phone ending in 13]

October 13, 12:35AM: Someone Just Checked Your Background Report

October 13, 2:00PM: Hello, Review your AT&T order [changes to wireless]

October 13, 9:17PM: Your [RosemontSeneca] Google Account was just signed in to from a new Samsung Galaxy Note 9 device

October 13, 11:36PM: Wells Fargo Has Registered Your Mobile Device

October 14, 2:24PM: Your Apple ID password has been reset

October 14, 2:24PM: Your Apple ID was used to sign in to iCloud on an iPhone X

October 14, 3:28PM: Wells Fargo card added to Apple Pay

October 14, 3:36PM: Verify your Samsung account [on iCloud]

October 14, 7:48PM: “Overcoming myself” [from Joey]

When you have a minute, read ….

Open my shared note:

Interspersed with this traffic, Hunter’s accountant was trying to get him to file his 2017 taxes, Twitter was informing him of this story showing that Jared Kushner hadn’t paid taxes for years, Hunter was draining his bank account one $800 withdrawal after another, and his business partner was approving a payment to Hunter’s lawyer that would all but drain the Hudson West business associated with CEFC. A different business partner, Eric Schwerin, was also pushing Hunter to resolve their business interests during the 2018 tax year, something he failed to pull off.

Without the location and IP addresses, it’s not entirely sure what happened here (Weiss should have that with the iCloud data). It’s not even clear that Hunter had a phone, at all, between the time he lost his phones, plural, on October 11 and started using his new iPhone X on October 14 (though he did have a third phone tied to an account he used with sex workers). Hunter may have used the Samsung as a temporary phone for those two days or borrowed someone else’s Samsung to check his email; but it wasn’t verified to his iCloud account before October 14 at 3:36PM, and so may not have been able to access some Apple services. Importantly, however, that phone accessed his RosemontSeneca Google account after Hunter had started using one of his new replacement iPhones, something that doesn’t make sense if he was borrowing it.

If the texts to Hallie were sent after Hunter changed his wireless account at 2PM on October 13, they might be traced to a secure telephony account. But if they were sent via iMessage or WhatsApp before Hunter changed his iCloud password at 2:24PM on October 14, then you’d have to use location and IP data to rule out that someone else sent those texts to Hallie, using Hunter’s still accessible iCloud account via his lost phones (plural, apparently).

Because this particular verification challenge involves iCloud, which should have the location and IP data to verify which devices were used, and because (unlike the sex workers) it wouldn’t involve Hunter’s copresence with someone accessing his bank account via biometrics that others might access if he were wasted, this should be something that prosecutors could definitively prove, if indeed Hunter did send these texts.

If they can’t prove the location and IP from which these texts were sent, they may not be admissible at all, because prosecutors may not be able to prove that they are, in fact, Hunter’s words and not those of someone using his lost phones.

If this goes to trial, it might be worth forcing prosecutors to go through the effort to prove Hunter did send the texts, because it not only demonstrates how uncertain this evidence can be five years after the fact, but it would also show that Hunter spent hours trying to reclaim his digital identity — possibly using the laptop that would end up in Ablow’s possession — during the period when, prosecutors would be arguing, he was sleeping [in] a car and smoking crack.

Plus, that process would demonstrate something else. First, note that Hunter never verifiably made efforts that he did in August (the day before the dual Venmo access) to shut down access others would have via those lost devices to his digital identity. There’s no evidence here that Hunter deleted those phones, as he had only just finished doing weeks earlier with an iPad taken in August. That is, if Joey or whoever had one or two phones that Hunter had been using for weeks or months, there would be a great deal of data on them that would allow them, or anyone who subsequently got the phones, to carry out a much more systematic compromise of Hunter’s digital identity in the future.

There’s also no evidence that Hunter changed passwords besides the AT&T one, including for the RosemontSeneca email account that hosted all the work emails that would become so controversial years later. If he didn’t do that, then at least one of those two lost phones could likely access that account without interruption.

I’m not yet ready to show it, but this process, the incomplete effort to reclaim his digital identity, continued through the period where Hunter’s account started being accessed by a new laptop on October 21. And, depending on how the progression from prosecutors’ initial August 2019 iCloud warrant to the December 2019 warrant for that same laptop itself to the warrant to expanded scope of Hunter’s iCloud in July 2020 culminating in December 2023 in the use of those iCloud texts to substantiate a gun case occurred — something that Derek Hines deliberately obfuscates in this same filing — it may mean that this entire investigation has been built on this impossibly rocky foundation since 2019.

The laptop that FBI started using as evidence without first fully validating it destroys chain of custody not just because it was accessed by a hostile person over the course of months before being delivered to the FBI, but also because Hunter’s use of it would have been built on a digital identity that was totally compromised.

Normally, financial records are what make tax cases easy to prove (and, to be sure, many of the financial records used for Hunter’s tax indictment will be easily verifiable). Normally, these kinds of digital communications are what make other indictments easy to prove without having to rely on a sympathetic witness like Hallie Biden, one personally implicated in the insecure disposal of a gun.

But even ignoring the likelihood that more nefarious people might have compromised Hunter’s identity in this period (for which these is some evidence), Hunter’s addiction meant that his digital identity was persistently in a state of half-compromise through this entire period. His addiction led him to do things that prosecutors have now charged him for. It also adds a good deal of validation challenges for the kind of evidence that normally is routine.

David Weiss’ Indict First, Seek Warrants Later Ethic

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I want to further elaborate on a point in this post: It appears that David Weiss did not obtain a reliable warrant for the most showy evidence in his response motion to Hunter’s selective and vindictive prosecution claim until after he indicted Hunter for 3 gun felonies — indeed, he appears not to have obtained it until after Abbe Lowell asked for this kind of evidence.

I think it likely that, as a result, David Weiss will technically be relying on evidence from the laptop he obtained from John Paul Mac Isaac, which (as I’ll show in a follow-up), may be a particularly acute problem for the period in question.

I’ve put a timeline below, relying on Weiss’ response motions on selective prosecution and discovery. Because Weiss did not provide dates for any of the warrants described in the former, I’ve noted the closest unsealed dockets before and after each warrant docket included to approximate the dates for those warrants.

The gun indictment, which Weiss obtained just before the statute of limitations expired, did not provide any proof that Hunter Biden was an addict when he purchased a gun on October 12, 2018. It simply stated, for each of three charges, that he knew he was.

[T]he defendant, Robert Hunter Biden, provided a written statement on Form 4473 certifying he was not an unlawful user of, and addicted to, any stimulant, narcotic drug, and any other controlled substance, when in fact, as he knew, that statement was false and fictitious.

It’s true that on July 26, 2023, Hunter Biden admitted he was in treatment for addiction in Fall 2018 — but that admission was obtained with the promise of a diversion agreement — a point that Abbe Lowell noted in his motion to dismiss on immunity grounds.

Hunter was arraigned — initially with a 30-day deadline for pretrial motions — on October 3, 2023. At the hearing, Lowell said that he was going to ask for an evidentiary hearing, which (along with his TV appearances) would have alerted Weiss that he would seek to dismiss the indictment.

By Weiss’ own admission, he didn’t provide any discovery until October 12, four days after Abbe Lowell asked. He describes that that initial production, of just 350 pages, included “statements of the defendant including his admissions that he was addicted to crack cocaine and possessed a firearm in 2018,” electronic evidence from Hunter’s iCloud account, as well as “search warrants related to evidence the government may use in its case-in-chief.”

On October 12, 2023, the government provided to the defendant a production of materials consisting of over 350 pages of documents as well as additional electronic evidence from the defendant’s Apple iCloud account and a copy of data from the defendant’s laptop. This production included search warrants related to evidence the government may use in its case-in-chief in the gun case, statements of the defendant including his admissions that he was addicted to crack cocaine and possessed a firearm in 2018, and law enforcement reports related to the gun investigation. [my emphasis]

But he doesn’t say he provided all the warrants behind the evidence the government will use in its case-in-chief.

As I’ve noted, Hunter’s book is 272 pages long, so if Weiss included the book in that initial production, then there were only 78 other pages, to include warrants and law enforcement reports pertaining to the gun.

Among the things Lowell asked for in that initial discovery request was information “reflecting Mr. Biden’s sobriety in 2018” and “information reflecting Mr. Biden’s treatment for any substance or alcohol abuse in 2018.”

Weiss described that he provided evidence about payments to rehab programs in 2018 (this will include Keith Ablow!!!) on November 1.

On November 1, 2023, the government provided a production of materials to the defendant that was over 700,000 pages and largely consisted of documents obtained during an investigation into whether the defendant timely filed and paid his taxes and committed tax evasion. These documents included information of the defendant’s income and payments to drug and alcohol rehabilitation programs in 2018, the same year in which the defendant possessed the firearm while addicted to controlled substances.

Weiss didn’t describe providing any more information about Hunter’s addiction or sobriety.

Weiss didn’t describe providing any more discovery — and didn’t describe providing any more warrants at all — until January 9, almost a month after Lowell’s deadline for pretrial motions, including motions to suppress.

In advance of his initial appearance on the tax indictment, the government made a production of materials to the defendant on January 9, 2024, which included over 500,000 pages of documents and consisted of additional information related to the tax investigation.

Yet, by Weiss’ own admission, he never had a warrant to access iCloud content for gun charges — as opposed to tax and foreign influence charges — until he got it with District of Delaware Case No. 23-507M. If my approximations below are correct, Weiss didn’t obtain a warrant to search Hunter’s iCloud content for gun charges until sometime between November 30 and December 4 of last year. As noted previously, I asked Weiss’ spox to correct me if this was an error, but they declined to comment beyond what is in the filing.

Weiss is wildly squirrely about all this, as I’ll show. But he basically admits that he’s relying on that warrant — which it appears he obtained over two months after indicting Hunter — for the only evidence in this motion that shows Hunter’s drug use during the period he possessed the gun (and as noted, Weiss doesn’t describe when in 2023 the FBI first decided to send the gun to a lab for testing, but he admits it wasn’t until 2023).

Prior to October 12, 2018 (the date of the gun purchase), the defendant took photos of crack cocaine and drug paraphernalia on his phone.

Also prior to his gun purchase, the defendant routinely sent messages about purchasing drugs.

On October 13, 2018, and October 14, 2018 (the day after and two days after he purchased the firearm), the defendant messaged his girlfriend about meeting a drug dealer and smoking crack. For example, on October 13, 2018, the defendant messaged her and stated, “. . . I’m now off MD Av behind blue rocks stadium waiting for a dealer named Mookie.” The next day, the defendant messaged her and stated, “I was sleeping on a car smoking crack on 4th street and Rodney.”

On October 23, 2018 (the day his then-girlfriend discarded his firearm), the defendant messaged his girlfriend and asked, “Did you take that from me [girlfriend]?” Later that evening, after his interactions with law enforcement, he messaged her about the “[t]he fucking FBI” and asked her, “so what’s my fault here [girlfriend] that you speak of. Owning a gun that’s in a locked car hidden on another property? You say I invade your privacy. What more can I do than come back to you to try again. And you do this???? Who in their right mind would trust you would help me get sober.” In response, the girlfriend stated “I’m sorry, I just want you safe. That was not safe. And it was open unlocked and windows down and the kids search your car. You have lost your mind hunter. I’m sorry I handled it poorly today but you are in huge denial about yourself and about that reality that I just want you safe. You run away like a child and blame me for your shit . . .”

Elsewhere in this response, Weiss quotes liberally from Hunter’s book, but the book really doesn’t say much about Hunter’s state in the 11 days he owned the gun.

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.

Here’s how Weiss — in the paragraph immediately preceding this evidence — describes how — after Delaware cops had already seized the gun — investigators obtained evidence showing the purchase was illegal:

C. While Investigating the Defendant for Tax Violations, Investigators Obtained Evidence Showing His Prior Gun Purchase Was Illegal Because He Was Addicted to Controlled Substances

In August 2019, IRS and FBI investigators obtained a search warrant for tax violations for the defendant’s Apple iCloud account. 2 In response to that warrant, in September 2019, Apple produced backups of data from various of the defendant’s electronic devices that he had backed up to his iCloud account. 3 Investigators also later came into possession of the defendant’s Apple MacBook Pro, which he had left at a computer store. A search warrant was also obtained for his laptop and the results of the search were largely duplicative of information investigators had already obtained from Apple. 4 Law enforcement also later obtained a search warrant to search the defendant’s electronic evidence for evidence of federal firearms violations and to seize such data. 5

2 District of Delaware Case No. 19-234M and a follow up search warrant, District of Delaware Case Number 20-165M.

3 The electronic evidence referenced in this section was produced to the defendant in discovery in advance of the deadline to file motions.

4 District of Delaware Case No. 19-309M.

5 District of Delaware Case No. 23-507M

Weiss says he first obtained a warrant for Hunter’s iCloud account in August 2019, but that was just for tax violations. He doesn’t describe the temporal scope of that warrant. Joseph Ziegler predicated the investigation off a 2018 Suspicious Activity Report tied to payments to sex workers, but he only got approval for a criminal investigation by claiming — a claim that the tax indictment debunks — that no taxes were paid for his 2014 Burisma payments, so it’s possible that initial warrant only focused on 2014 and 2015 (particularly given that Hunter couldn’t have committed a tax crime in 2018 until October 2019, after that warrant was obtained in August 2019).

In a footnote but not in the text of the paragraph, Weiss mentions, oh, by the way, we got a follow-up warrant in 2020; he doesn’t provide the date, but it would have been between July 9 and 16, 2020. According to Gary Shapley, investigators obtained 2017 texts with that 2020 warrant — which again may suggest that Weiss didn’t obtain later content until after obtaining it first on the laptop.

Back in the main text, Weiss describes obtaining the laptop [bum bum BUM!!!]. But he claims that what he got from the laptop was “largely duplicative” of what he “already obtained” with the iCloud warrant.

Then, finally, he admits he never got a warrant to search the iCloud (he’s silent about the scope of the laptop warrants, but Ziegler only talked about tax and foreign influence peddling scopes) for evidence of gun crimes until that warrant that, if my approximation is correct, was after the indictment and after Weiss claimed to have provided all discovery for the gun crimes.

Note, significantly, that in a footnote Weiss said, “The electronic evidence referenced in this section was produced to the defendant in discovery in advance of the deadline to file motions,” but doesn’t say anything about when he provided that (apparent) December 2023 warrant to Lowell? It’s not clear whether Weiss included this among the iCloud and laptop material provided on October 12, or among the 700,000 pages provided on November 1.

But whichever it is, if I’m right about the timing of that gun crime warrant, Weiss did not yet have a warrant to access that material for the already obtained indictment yet. Lowell had the content, but not the notice that Weiss was going to use it for the gun crime.

And all this is before you consider the possibility that the second warrant, obtained in 2020, relied on the laptop (something that is consistent with Shapley’s testimony). If that’s the case, then Weiss would have a whole slew of other problems — not least, that John Paul Mac Isaac claims FBI was accessing the laptop before the date that Shapley says they got a warrant.

Update: Let me clarify why this matters. There’s no question that there was probable cause for gun crimes available for a warrant affidavit last year. And it is fairly common for prosecutors to get new warrants for content they’ve already seized; SDNY did so against both Michael Cohen and Rudy Giuliani, for example.

One reason this is problematic, though, is the timing. Weiss is arguing that he always intended to prosecute gun crimes, but he appears not to have gotten a warrant until after he charged it, which hurts his argument that he always intended to prosecute it (as does the delay in sending the gun to the lab). So it could hurt Weiss’ chances to win these motions.

Unless one of three things happened, David Weiss would be able to use this data at trial.

  • If the warrant to obtain the 2018 data was the warrant obtained in 2020 and it relied on stuff from the laptop, the laptop may have tainted the 2020 warrant. There are several ways the laptop may have tainted the 2020 warrant, one of which is JPMI’s claim that FBI was accessing the laptop before they got a warrant.
  • As noted, Weiss is really squirrely about when — or even if — it gave Abbe Lowell the warrant for this material. If they gave it to him after the deadline for these motions to suppress, it would mean they’ve deprived him of the ability to file a motion to suppress.

Timeline

August 22, 2019 [19-mj-232]

August 2019: Weiss first obtains iCloud data, for unstated dates, limited to tax crimes [19-mj-234]

In August 2019, IRS and FBI investigators obtained a search warrant for tax violations for the defendant’s Apple iCloud account. 2

2 District of Delaware Case No. 19-234M

August 27, 2019: [19-mj-235]

October 16, 2019: Mac Isaac’s father first contacts FBI [Shapley’s notes]

December 3, 2019: Ziegler first starts drafting search warrant for laptop

December 6, 2019: [19-mj-302]

December 9, 2019: FBI takes possession of laptop; per John Paul Mac Isaac, “Matt” called several times, asking for help accessing the machine, and revealing “we” had already tried to boot it up.

“Hi, it’s Matt again. So, we have a power supply and a USB-C cable, but when we boot up, I can’t get the mouse or keyboard to work.”

I couldn’t believe it—they were trying to boot the machine!

“The keyboard and trackpad were disconnected due to liquid damage. If you have a USB-C–to–USB-A adaptor, you should be able to use any USB keyboard or mouse,” I said. He related this to Agent DeMeo and quickly hung up.

Matt called yet again about an hour later.

“So this thing won’t stay on when it’s unplugged. Does the battery work?”

I explained that he needed to plug in the laptop and that once it turned on, the battery would start charging. I could sense his stress and his embarrassment at having to call repeatedly for help. [my emphasis]

December 12, 2019: Obtain OEO approval for warrant

December 13, 2019: Obtain warrant for laptop [date per Shapley]

Investigators also later came into possession of the defendant’s Apple MacBook Pro, which he had left at a computer store. A search warrant was also obtained for his laptop and the results of the search were largely duplicative of information investigators had already obtained from Apple.

4 District of Delaware Case No. 19-309M.

December 13, 2019: [19-mj-311]

December 14, 2019: Will Levi sends Bill Barr text stating, “Laptop on way to you”

July 9, 2020: [20-mj-162]

July 2020: Weiss obtains follow-up warrant, by description still limited to tax crimes (but almost certainly also including foreign influence peddling) [20-mj-165]

In August 2019, IRS and FBI investigators obtained a search warrant for tax violations for the defendant’s Apple iCloud account. 2

2 and a follow up search warrant, District of Delaware Case Number 20-165M.

July 16, 2020: [20-mj-177]

ND, 2023: FBI first does lab tests on gun and finds cocaine residue

September 14, 2023: Gun indictment

October 3, 2023: Arraignment

October 8, 2023: Request for discovery

On October 8, 2023, the defendant made a request for discovery under Federal Rules of Criminal Procedure 16.

October 12, 2023: First discovery production

On October 12, 2023, the government provided to the defendant a production of materials consisting of over 350 pages of documents as well as additional electronic evidence from the defendant’s Apple iCloud account and a copy of data from the defendant’s laptop. This production included search warrants related to evidence the government may use in its case-in-chief in the gun case, statements of the defendant including his admissions that he was addicted to crack cocaine and possessed a firearm in 2018, and law enforcement reports related to the gun investigation. [my emphasis]

November 1, 2023: Discovery production 2

On November 1, 2023, the government provided a production of materials to the defendant that was over 700,000 pages and largely consisted of documents obtained during an investigation into whether the defendant timely filed and paid his taxes and committed tax evasion. These documents included information of the defendant’s income and payments to drug and alcohol rehabilitation programs in 2018, the same year in which the defendant possessed the firearm while addicted to controlled substances.

November 15, 2023: Follow-up request for discovery regarding Trump’s interference and Brady channel

November 15, 2023: Abbe Lowell requests subpoenas for Trump, Bill Barr, and others

November 30, 2023: [23-mj-504]

ND, 2023:

Law enforcement also later obtained a search warrant to search the defendant’s electronic evidence for evidence of federal firearms violations and to seize such data.5

5 District of Delaware Case No. 23-507M

December 4, 2023: [23-mj-508]

December 7, 2023: Tax indictment

December 11, 2023: Hunter’s motions due

ND: Third discovery production

In advance of his initial appearance on the tax indictment, the government made a production of materials to the defendant on January 9, 2024, which included over 500,000 pages of documents and consisted of additional information related to the tax investigation.

January 11, 2023: Arraignment

The Coke-in-Gun Actually Harms David Weiss’ Case

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As prosecutors are wont to do, David Weiss’ prosecution team used its response to Hunter Biden’s selective and vindictive prosecution claim to air embarrassing dirt.

As dick pic sniffing scribes are wont to do, most outlets glommed onto those details — one in particular — rather than discussing Weiss’ legal arguments. NYPost, CNN, AP, WaPo all presented the following detail without any consideration of whether it helps — or hurts — David Weiss’ case against Hunter.

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. To be clear, investigators literally found drugs on the pouch where the defendant had kept his gun.

At the very least, the incident betrays the lack of certain kinds of evidence that Weiss may need to defeat the filing in question — and arguably, helps to prove Hunter’s argument that Weiss only considered gun charges after Republicans started ratcheting up political pressure to do so.

As noted, this is a response to Hunter’s motion to dismiss on selective and vindictive prosecution grounds, in which he argued that:

  • DOJ would not charge other people based on the same set of facts — and indeed had guidelines advising against it
  • In response to political pressure, including but not limited to Republican Members of Congress and Trump, David Weiss reneged on a plea deal and decided to charge Hunter with three felonies rather than respect a diversion agreement
  • Congress forced this issue by demanding Weiss prosecute more harshly

Weiss’ response — written by Derek Hines, the same AUSA who simply did not address some of the evidence of politicization Hunter cited — spent over half the filing addressing Hunter’s selective prosecution claim, in spite of the fact that that’s the easiest claim to rebut. He simply repeated, as all such responses do, that Hunter hasn’t found someone similarly situated who wasn’t charged (the argument surely invites Abbe Lowell to raise Don Jr’s apparent impairment or Trump’s temporary possession of a gun after having been charged with dozens of felonies). There are weaknesses in that section — he ignores DOJ’s guidance, rather than addressing Hunter’s assertion that the charge is used in conjunction with other crimes, he instead uses data on straw purchases (which this was not) to claim Hunter’s lie was itself an aggravating factor.

With this chart, Hines is, at best, misleadingly presenting Hunter’s alleged false statement as a different, far more premeditated false statement than Hunter is accused of.

Abbe Lowell will have plenty of meat to respond to in that section, but as I have said repeatedly, Hunter probably doesn’t offer as much as he’d need to to win a selective prosecution claim.

A vindictive prosecution claim is something else. Hines admits that Hunter describes a right he exercised that was the reason for the vindictive prosecution, but complains that merely being the sole surviving son of Donald Trump’s opponent is not a constitutionally protected right.

The defendant does not attempt to show causal linkage between a legal right exercised by him and his prosecution. In his motion, the defendant appears generally to identify one legal right that he claims he exercised which he alleges caused his indictment: “engaging in constitutionally protected speech and political activity.” ECF 63 at 49. But he fails to identify with any specificity what his constitutionally protected speech or his political activity was. For example, he does not contend that he made a public political statement, nor does he identify which statement caused prosecutors to have animus. His failure to identify facts that support any actual legal right that he exercised should prevent this court from moving forward to even analyze his vindictive prosecution claim because no court has recognized a derivative vindictive prosecution claim based on a family member’s exercise of rights. [emphasis original]

Hines pretty much lies about how much Weiss ratcheted up the potential punishment against Hunter, which is the proof that prosecutors took vindictive action against Hunter for exercising his rights.

What Hines does not do — not in the least — is address Lowell’s map of how, as political pressure from Republicans ratcheted up, David Weiss reneged on the specific terms in a plea agreement. The latest communication from the ones submitted to the record that he cites was dated May 23, 2023, before the political pressure started ratcheting up.

For example, in an email to defense counsel dated May 18, 2023, about “a potential nontrial resolution,” Document 60-6 at p. 2, the AUSA stated, “As I said during our call, the below list is preliminary in nature and subject to change. We have not discussed or obtained approval for these terms, but are presenting them in an attempt to advance our discussions about a potential non-trial resolution . . .” The following week, in an email to defense counsel dated May 23, 2023, Document 60-9 at p. 3, the AUSA stated, “As we indicated in our emails and discussions we did not have approval for a pre-trial diversion agreement. As you know, that authority rests with the US Attorney who ultimately did not approve continued discussions for diversion related to the tax charges.” [emphasis original]

Hines ignores that, according to Chris Clark’s declaration and a great deal of back-up submitted with it, David Weiss was personally involved in language crafted two weeks after that May 23 email.

Later that afternoon, on June 6, 2023, I spoke directly with U.S. Attorney Weiss. During that call, I conveyed to U.S. Attorney Weiss that the Agreement’s immunity provision must ensure Mr. Biden that there would be finality and closure of this investigation, as I had conveyed repeatedly to AUSA Wolf during our negotiations. I further conveyed to U.S. Attorney Weiss that this provision was a deal-breaker. I noted that U.S. Attorney Weiss had changed the deal several times heretofore, and that I simply could not have this issue be yet another one which Mr. Biden had to compromise. The U.S. Attorney asked me what the problem was with the proposed language, and I explained that the immunity provision must protect Mr. Biden from any future prosecution by a new U.S. Attorney in a different administration. The U.S. Attorney considered the proposal and stated that he would get back to me promptly.

29. Later that same evening on June 6, 2023, at or around 5:47 PM EST, AUSA Wolf emailed me proposed language for the immunity provision that read: “How about this- 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.” (Emphasis in original.) After speaking with Mr. Biden, I responded to AUSA Wolf that the language she sent me “works” and is suitable for Mr. Biden as well, at which point the Parties had a deal. A true and correct and correct copy of AUSA Wolf’s June 6, 2023, email to Chris Clark is attached hereto as Exhibit K.

30. On June 7, 2023, AUSA Wolf emailed me a revised draft of the Diversion Agreement that incorporated the language she had proposed in her June 6 email to me. In that draft, the revised Paragraph 15 provided that “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.” (Emphasis added.) A true and correct copy of AUSA Wolf’s June 7, 2023, email and redlined Diversion Agreement to Chris Clark is attached hereto as Exhibit L. [emphasis original]

That is, as late as June 6 — the day before that the pressure on Weiss started to publicly ratchet up — David Weiss had personally sanctioned a misdemeanor plea with a gun diversion. That was long after, importantly, the agreement to treat the gun charges via diversion.

That is, Derek Hines simply doesn’t address the abundant evidence that Weiss reneged on a commitment he had personally committed to after coming under political pressure.

As I have laid out, normally these kinds of vindictive prosecution claims are almost as easy to rebut as selective prosecution claims. I described what you might expect in a case arguing that a prosecutor decided to ratchet up charges in response to improper influence: Some kind of language addressing what changed to justify ratcheting up the charges.

You can see how this works in the case of Hatchet Speed, based on facts — involving felony gun charges in one district and the addition of a felony charge to a misdemeanor in another — not dissimilar from Hunter’s case. On January 6, Speed was an NRO contractor with TS/SCI clearance and a Naval reservist still training at Andrews Air Force Base. He had ties to the Proud Boys and expressed a fondness for Hitler. He went on a $50,000 weapon buying spree after January 6, including devices that — prosecutors successfully argued in a second trial — qualified as silencers under federal law. He was charged for unregistered silencers in EDVA and, at first, misdemeanor trespassing charges for his actions on January 6. Between the time his first EDVA trial ended in mistrial and a guilty verdict in his retrial, DOJ added a felony obstruction charge in DC, which his excellent FPD attorneys argued was retaliation for the mistrial. But DOJ responded with an explanation of the process leading to the addition of the felony obstruction charge: they added a second prosecutor, got better at prosecuting obstruction for January 6, found some more damning video of Speed at the Capitol, and came to recognize how Speed’s comments about the attack would prove the corrupt intent required for obstruction charges. They were pretty honest that they regarded Speed as a dangerous dude that they wanted to put away, too.

The same process might well happen if Lowell files a vindictive prosecution claim. Under Goodwin, Weiss might have to do little more than say there was a societal interest in jailing Hunter Biden to affirm the import of the gun laws his father continues to champion.

Normally, prosecutors simply point to some evidence obtained after an initial prosecution decision that changed prosecutors mind about charging.

But Hines doesn’t assert to have any of that in this filing!! Not even the argument I expected — that it’s important that Joe Biden’s kid be subject to the same gun laws that his father champions with everyone else.

What he has (as noted by the timeline below) are a series of dates — including for the discovery of the cocaine residue in the pouch — that Hines obscures.

Rather than a specific explanation of what changed to merit the three gun felonies instead of a diversion, there’s this patently dishonest claim about when the prosecution got evidence in this case.

First, the defendant claims, “DOJ obtained the facts underlying this case years ago and was satisfied the case did not warrant prosecution.” ECF 63 at 50. This is inaccurate. Many of the incriminating facts were discovered years after the conduct when prosecutors had received the defendant’s Apple messages and when the defendant released his incriminating book. There is no evidence that the DOJ decided that this case did not warrant prosecution “years ago.”

The thing about investigations into events that happened five years ago is that prosecutors can have obtained evidence “years ago” that they nevertheless obtained “years after” the alleged crime. Hines is playing word games: The indictment relies heavily on Hunter’s 272-page book, which had been out over two years before David Weiss personally blessed a diversion for the charges.

What prosecutors don’t say — what they would have to say to explain how new evidence led them to change their minds about charging — is that they obtained that evidence between the day David Weiss blessed a diversion agreement — well before June 6 — and the date he decided to charge felonies that Hines argues, while reserving the right to ask for a bunch of enhancements, expose Hunter to 15-21 months’ imprisonment.

Instead, Derek Hines hides what date prosecutors obtained that coke residue evidence. If I’m right that the warrant to search Hunter’s iCloud content was obtained in December — after indicting this crime — then it would be the opposite of proof (again, I’ve asked Weiss’ office for clarity on this point, because I can’t believe they’d only obtain that warrant after indicting). But that is consistent with the discovery motion that described the first batch of discovery only amounted to 350 pages of evidence (which, if it included the whole book would only include 78 additional pages of evidence).

On October 12, 2023, the government provided to the defendant a production of materials consisting of over 350 pages of documents as well as additional electronic evidence from the defendant’s Apple iCloud account and a copy of data from the defendant’s laptop. This production included search warrants related to evidence the government may use in its case-inchief in the gun case, statements of the defendant including his admissions that he was addicted to crack cocaine and possessed a firearm in 2018, and law enforcement reports related to the gun investigation.

More importantly is what this motion doesn’t say. First of all, in spite of falsely treating Hunter’s false statement as if it were a straw purchase to claim an aggravating factor, it provides zero evidence that Hunter had the intent of deceiving on that form. It provides evidence, instead, that Hunter was paranoid and trying to find a way to protect himself and totally out of his mind, the opposite of what you need to prove a willful lie.

Worse still, what the motion literally shows is the reverse of what Hines’ dick-wag in the paragraph all the dick pic sniffers have picked up on. Yes, “to be clear, investigators literally found drugs on the pouch where the defendant had kept his gun.” That impressed the hell out of the dick pic sniffers. But to be clearer, investigators literally didn’t look for drug residue on the gun until five years, possibly longer, after law enforcement seized the gun. 

Even if that drug residue had been found between July 26 and September 14, it’d still be proof that prosecutors never took basic steps towards charging gun crimes until after Republicans brought their heat. If it happened before June 20 in 2023, it’d be even further proof that that Devlin Barrett story did what it was designed to do: to politicize this case. If it happened in December, then it’s a sign of real negligence and dishonesty.

Whatever it is, it proved more useful for impressing the dick pic sniffers than it will in defeating Hunter’s vindictive prosecution claim.

Update: Weiss’ spox declines to comment beyond the court filings.

Update: Fixed the grammar in vindictive action.

Timeline

October 2018: The gun, ammunition, and speed loader were placed in evidence

August 2019: The tax and foreign influence peddling iCloud warrant Weiss claims to be relying on obtained

December 2019: When Weiss obtained the laptop, but he doesn’t provide the exact date or discuss the provenance problems of it

August 2020: An iCloud warrant, probably the fruit of the laptop and almost definitely also limited to tax and influence peddling crimes, that Weiss mentions in a footnote but doesn’t acknowledge in the text

April 6, 2021: Publication date of Hunter’s book, which specific date Weiss does not include in the filing.

March 2022: Prosecutors first inform Chris Clark they are considering gun charges.

October 6, 2022: Politicized leak to Devlin Barrett designed to pressure David Weiss into charging gun charges.

October 31, 2022: Chris Clark notes that prosecutors didn’t tell him of potential gun crimes until March 2022.

Since December 2020, nearly all of our meetings, phone calls, and correspondence with your Office have related to the Government’s investigation of Mr. Biden for possible tax offenses. It was not until a phone call in March 2022—over a year into our cooperative dialogue—that your Office disclosed a potential investigation of Mr. Biden for possible firearms offenses (the “Firearm Investigation”).

September 14, 2023: Weiss obtains gun indictment just before speedy trial clock expires.

ND: Prosecutors obtain a warrant, listed as 23-507M, to “to search the defendant’s electronic evidence for evidence of federal firearms violations and to seize such data.” The filing does not provide a date for this warrant, but 23-mj-504 was an arrest warrant obtained on November 30 and 23-mj-508 was an arrest warrant obtained on December 4, 2023. I have asked Weiss’ office for clarification on whether this warrant could possibly have been obtained in December, almost three months after the indictment.

ND: Sometime in 2023, date not given, but by description after the gun-related warrant, prosecutors access the gun that has been in storage for over 5 years and “notice” it has cocaine residue on it, which is when they first sent it for FBI analysis.