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David Weiss Buries Bill Barr Right Alongside Tony Bobulinski

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For a second time, David Weiss’ Special Counsel team has buried an inconvenient (some)body to avoid accounting for the politicization of the investigation they claim is not political.

This time, it’s Bill Barr.

Across three responses pertaining to political influence submitted yesterday — request for discovery, immunity through diversion agreement, and selective and vindictive prosecution — the prosecutors used a variety of tactics to simply avoid dealing with inconvenient evidence.

In the discovery response, after describing discovery production to date — 500,000 pages of which came on January 9 — Derek Hines argued that under Armstrong, Hunter Biden hadn’t reached the threshold for discovery, primarily addressing selective prosecution rather than vindictive (as I’ll show, Hines ignores much of Hunter’s vindictive prosecution argument). In claiming there’s no evidence to support discovery, his discovery response doesn’t address a single piece of evidence that Hunter showed to support his argument. Instead, it paraphrases Hunter’s two discovery requests (one, two) this way:

  • Emails, documents, and information reflecting deliberative processes and decision-making of DOJ concerning the investigation and its decision to bring charges against the defendant. ECF 65 at ¶¶ E, G
  • Emails, documents, and information concerning communications with Congress and “any person at the U.S. Department of Justice” “concerning the investigation or prosecution of Mr. Biden, including the decision to bring any particular charges.” ECF 65 at ¶ H
  • “All documents and records reflecting communications from January 20, 2017 to the present (the “Relevant Time Period”) to, from, between, or among Donald J. Trump, William P. Barr, Geoffrey Berman, Scott W. Brady, Richard Donoghue, or Jeffrey A. Rosen relating to or discussing any formal or informal investigation or prosecution of Hunter Biden, or a request thereof” ECF 66 at ¶ 1
  • “All documents and records reflecting communications from the Relevant Time Period to, from, between, or among Donald J. Trump, William P. Barr, Geoffrey Berman, Scott W. Brady, Richard Donoghue, or Jeffrey A. Rosen and any Executive Branch official, political appointee, Department of Justice official, government agency, government official or staff person, cabinet member, or attorney for President Trump (personal or other) discussing or concerning Hunter Biden.” ECF 66 at ¶ 2

The paraphrase ignores items in Hunter’s first request pertaining to John Paul Mac Isaac (yesterday’s filings reference the laptop without describing its provenance or whether and how follow-on warrants relied on it), to disciplinary investigations, leak investigations, and other communication with the press (one of which Hines specifically relies on in his responses), as well as draft 302s and FD-1023s like the one recording an unreliable Tony Bobulinski interview made after being hosted by Donald Trump (which, as I noted, Weiss distorted the facts to exclude from the tax indictment, just as he distorts the facts regarding Barr’s involvement) or an informant report obtained via a dedicated channel for Rudy Giuliani’s dirt.

That is, Hines simply ignores a number of items in Hunter’s request that prove Trump’s personal and ongoing tampering in this investigation.

The discovery response likewise ignores Hunter’s request for subpoenas for materials in the possession of Trump and others, including Barr, which was cited in Hunter’s own discovery motion, even though Hines dealt with comments Trump made on Truth Social this way, in his selective and vindictive response:

The next statements by Trump cited by the defendant in support of his argument (ECF 63 at 31) occurred in 2023, now on a website called “Truth Social.” After the defendant filed his motion, undersigned counsel have tried to gain access to the website to verify the authenticity of the “Truth Social” messages cited by the defendant, but the site apparently is not functional:

Accordingly, while the government has not verified the accuracy of the messages or been able to assess any surrounding context that the defendant may have omitted, it is still clear that these supposed messages do not advance the defendant’s claim.

“Let me subpoena all the threats made by Donald Trump on his social media site,” Hunter asked. And after Leo Wise claimed that’s not necessary, Hines professed to be utterly incompetent to be able to find those threats, including at least one targeting David Weiss personally, published publicly. That, even though other parts of DOJ have proven perfectly capable of accessing Truth Social — for example, after Taylor Taranto used the address for Barack Obama that Trump posted there to start stalking the Kalorama neighborhood of Trump’s predecessor. DOJ knows how to find threats Trump elicits on Truth Social, but poor Derek Hines claims he doesn’t have any way of doing that.

You know how you might get those posts, Derek Hines? A subpoena.

But it is in Bill Barr’s role where this response is most telling (particularly given Hines’ paraphrase ignoring FD-1023s).

Here’s how, in the selective and vindictive response, he addressed Hunter’s request for information from Bill Barr.

Even the contents of most of the tweets cited by the defendant contradict his claim that he is being selectively and vindictively prosecuted. For example, according to the defendant, on December 12, 2020, former President Trump complained that then-Attorney General Barr did not “reveal the truth” to the public before the election about Hunter Biden. ECF 63 at 29. If the DOJ was acting to pursue a political agenda, wouldn’t DOJ have done the opposite? The defendant says President Trump tweeted, “I have NOTHING to do with the potential prosecution of Hunter Biden, or the Biden family. . . ” Id. That claim of non-involvement does not support his claim. According to the defendant, in his book, Attorney General Barr stated he was asked by President Trump about the investigation of Hunter Biden, and Attorney General Barr refused to tell him about it. Id. at 30. This withholding of information does not support his argument.

And here’s how Hines dodged any discussion of the Deputy Attorney General’s role in channeling Russian disinformation — as well as an FD-1023 obtained via a dedicated channel from Trump’s personal lawyer — into the investigation of the son of Trump’s campaign opponent.

In this same section of his brief, the defendant cites testimony of an IRS employee who stated that DOJ made the decision not to take overt investigative steps that could influence the 2020 election. Id. The problematic conduct that the defendant complains of is that the Deputy Attorney General’s office during the Trump Administration was aware of and involved in some specific investigatory decisions in the most banal fashion possible—by waiting to take specific investigative steps at certain times out of caution so that that investigation would not influence a Presidential election. If the defendant’s vindictiveness allegations were true, wouldn’t DOJ prosecutors have done the opposite and permitted investigators to take overt steps that could have influenced the election? These claims show only that career DOJ prosecutors and DOJ leadership acted appropriately when investigating the son of a candidate for President. Moreover, against this backdrop, U.S. Attorney Weiss was then asked to remain U.S. Attorney during the Biden Administration, which further underscores the lack of discriminatory intent.

As Wise did in the filing claiming to need no subpoena, Hines did here: both completely ignored that Hunter has pointed to official records, which are in no way deliberative, showing that months after Donald Trump asked Volodymyr Zelenskyy to provide campaign dirt to Rudy Giuliani and Bill Barr, days after (per Chuck Grassley) shutting down an investigation into Mykola Zlochevsky, the former Attorney General set up a channel dedicated to ingesting dirt from Rudy, including from Zlochevsky and known agents of Russia, to be laundered into the investigation of Hunter Biden.

That response ignores several aspects — either implicit or explicit — of Hunter’s request:

  • Joseph Ziegler initially claimed (he subsequently backed off this claim) that Bill Barr personally decided to put the investigation in Delaware, an appropriate venue to investigate Joe Biden, but not for Hunter’s suspected tax crimes
  • Bill Barr set up a back channel to receive Rudy Giuliani’s dirt targeting Hunter and Joe Biden, including dirt obtained from Mykola Zlochevsky and known Russian agent Andrii Derkach
  • Days after Trump harangued Bill Barr personally (described in his book as a response to the initial NY Post story published on October 14), Richard Donoghue ordered Weiss’ team to accept a briefing on the FD-1023 (which happened on October 23 — the same day Bobulinski met with the FBI)
  • Bill Barr told Margot Cleveland, for a story published just as David Weiss started reneging on a plea deal in June, that he was personally involved in sharing the FD-1023 with Weiss’ office

And if Weiss responded to Hunter’s request for “communications with Congress,” he would have to provide the following:

  • Discussions Barr had with Lindsey Graham about the dedicated channel he was setting up to target Hunter Biden
  • The correspondence via which DOJ told Jerry Nadler about the dedicated channel for Rudy’s dirt
  • The July 10 letter from Weiss to Lindsey Graham stating that the FD-1023 produced by that dedicated channel was still being investigated, crucial evidence of what I called the FARA headfake inventing a reason to reopen the investigation
  • Chuck Grassley’s October 23 letter to Merrick Garland describing that days before Barr set up that dedicated channel and around the time when Zlochevsky made unprecedented claims of having bribed Joe Biden, Bill Barr’s DOJ shut down a corruption investigation whence the FD-1023 would be reverse engineered via Barr’s dedicated channel
  • Scott Brady’s testimony describing:
    • The dedicated channel to launder dirt into the Hunter Biden investigation involved 5 prosecutors in Brady’s office (including him), plus some number of FBI people
    • Between January and October 2020, Brady spoke to Weiss every four to six weeks about this dedicated channel
    • Brady demanded — and after some “colorful” language with Weiss, got — interrogatories regarding the scope of Weiss’ investigation
    • In his initial explanation, Brady said his team found that lead via asking the FBI to search on “Hunter Biden” and “Burisma,” precisely the request Trump had made of Volodymyr Zlochevsky
    • The reinterview of the Zlochevsky informant came at Brady’s direction
    • Brady’s claimed vetting of the Zlochevsky lead included checking travel records (the dates of which were not included on the FD-1023) but did not include comparing Zlochevsky’s claims against the materials from impeachment or even public reporting that conflicted with it
    • He “reminded” Weiss of the obligation to investigate leads
    • He provided a report to Donoghue in September 2020 that would in no way be deliberative
    • He got Donoghue to intervene when Weiss’ team showed reluctance to accept his laundered dirt
    • Brady personally kept Bill Barr informed of his efforts
  • David Weiss’ testimony describing:
    • He never spoke with Joe Biden about remaining on as US Attorney, has not been supervised by any political appointee since 2022, and has never once spoken to his boss, Lisa Monaco
    • He did speak with Bill Barr about remaining on as US Attorney
    • He has never had direct communication with Merrick Garland save the written communication in which he asked to be made Special Counsel
    • The discussion he had with LA US Attorney Martin Estrada goes to the merits of the case that Estrada said would not be worth charging that Weiss has since charged
    • He always intended to continue the investigation into Hunter, a claim that materially conflicts with something that Chris Clark says Weiss’ First AUSA told him
    • He believes Leslie Wolf, whom he removed from the Hunter Biden team, is a person of integrity
    • The information laundered through Brady was still ongoing as of November 7
    • His office has been targeted by threats and harassment — and he himself raised concerns about intimidation
    • He still remembers Gary Shapley’s body language in response to Weiss’ comment about the merits of the case
  • Thomas Sobocinski’s testimony describing:
    • After Gary Shapley’s claims went public, threats to personnel on the team “absolutely increased”
    • He “definitely” had discussions with David Weiss about how Shapley’s claims would affect the case
    • After Shapley’s claims, the children of people on the team started getting followed
    • Leslie Wolf has concerns for her safety
  • Martin Estrada’s description of three reports he received, which convinced him it was not worth dedicating resources to prosecuting Hunter Biden for tax crimes in Los Angeles

In short, Hines simply refuses to deal with the evidence — some laid out explicitly in Hunter’s filing — that would substantiate how Bill Barr went to great lengths to let Trump’s personal attorney launder dirt into this investigation, and then continued to politicize this investigation during the period when Weiss’ team was subjected to increased threats.

The record already shows that Trump demanded an investigation, DOJ set one up in the way most likely to implicate Joe as opposed to Hunter, in the wake of pressure from Trump and during the campaign season, DOJ ordered Weiss to accept an informant report reflecting a suspect relationship between Zlochevsky and Trump’s attorney, and that back channel continues to be one of the ways Republicans have provably pressured David Weiss to prosecute Hunter more harshly, after which pressure Weiss did just that.

But by refusing to address the substance of the evidence Hunter laid out showing this investigation was politicized, Hines simply buried all that.

The David Weiss and Leo Wise Inconsistencies Left Out of Hunter Biden Arraignment Coverage

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In testimony given to the House Judiciary Committee on November 7, 2023, David Weiss told Steve Castor and then Jim Jordan that the investigation into Hunter Biden was continuing, even after the plea deal filed on June 20 (here’s Politico’s coverage).

Q One of the big questions I think a lot of our members have is that, as of last July, you know, heading into July 26th, you know, we saw the plea agreement and the pre-trial diversion agreement; you know, we thought this matter was coming to a close, and then it didn’t.

How do you address the fact that this was on the verge of being completely over and wrapped up on July 26th and then, boom, in August, you have to request Special Counsel status, now you’re standing up a whole new office, and we’ve got an investigation that could go on for some time?

A Yeah. I understand the question and the members’ curiosity.

Q Uh-huh.

A Because I’ve got ongoing litigation in Delaware, I’m not at liberty to discuss it. But —

Q Uh-huh.

A — I can say that at no time was it coming to a close. I think, as I stated in the one statement I made at the time —

Q Uh-huh.

A — the investigation was continuing. So it wasn’t ending there in any event.

Chairman Jordan. When the judge would’ve accepted the agreement, it wasn’t over?

Mr. Weiss. Our efforts were not concluded; that’s correct.

According to a declaration, made under penalty of perjury, submitted last month by former Hunter Biden attorney Chris Clark, that Weiss claim — made under penalty of prosecution — conflicts with what Weiss’ First AUSA Shannon Hanson told him on June 19, 2023.

35. On June 19, 2023, at 2:53 PM EST, after I had a phone call with AUSA Hanson indicating I would do so, I emailed AUSA Hanson a proposed press statement to accompany the public release of both Informations that read, in part, “I can confirm that the five-year long, extensive federal investigation into my client, Hunter Biden, has been concluded through agreements with the United States Attorney’s Office for the District of Delaware.” (Emphases added.) A true and correct copy of Chris Clark’s June 19, 2023, email to AUSA Hanson is attached hereto as Exhibit P.

36. Shortly after that email, I had another phone call with AUSA Hanson, during which AUSA Hanson requested that the language of Mr. Biden’s press statement be slightly revised. She proposed saying that the investigation would be “resolved” rather than “concluded.” I then asked her directly whether there was any other open or pending investigation of Mr. Biden overseen by the Delaware U.S. Attorney’s Office, and she responded there was not another open or pending investigation. Thereafter, at 4:18 PM EST that day, I sent AUSA Hanson a revised statement that read: “With the announcement of two agreements between my client, Hunter Biden, and the United States Attorney’s Office for the District of Delaware, it is my understanding that the five-year investigation into Hunter is resolved.” (Emphases added.) The new statement revised the language from “concluded” to “resolved,” a stylistic change that meant the same thing. A true and correct copy of Chris Clark’s June 19, 2023, email to AUSA Hanson is attached hereto as Exhibit Q [Clark’s italics, my bold]

I’ve seen no coverage of Hunter Biden’s arraignment from yesterday — not the decent stories from NYT and ABC and not the typically shoddy story from WaPo — that mentions this discrepancy. And yet even though most stories on the arraignment described that the plea deal fell apart last July, none reported that Clark claims Weiss’ office assured Hunter there was no ongoing investigation on June 19 but then claimed on June 20 that there was an ongoing investigation.

This is absolutely crucial background to ABC’s report of how the plea deal was discussed yesterday.

The parties also again discussed the failed plea deal that led to the tax indictment last month. At one point during the 30-minute hearing, an attorney for Hunter Biden stood to express frustration with the plea deal falling apart, saying “we had a resolution of this case in 2023 and then things happened.”

The government pushed back, saying: “pleas fall apart all the time.”

Plea deals fall apart all the time. But government lawyers do not tell defendants one thing in June and then tell members of Congress something entirely different in November, as Hunter’s team alleges occurred.

And there’s another discrepancy in what prosecutors are saying, something that underscores the ethical problem with the tax indictment against Hunter (and the shoddy reporting of many outlets, including WaPo).

On July 26, 2023, Leo Wise stood as an officer of the court and made this representation to Judge Maryanne Noreika.

Approximately a year-and-a-half later, on or about October 18th, 2021, a third party paid the Internal Revenue Service $955,800 to cover Biden’s self-assessed individual tax liability with interest and penalties for tax year 2017 and $956,632 to cover Biden’s self-assessed individual tax liability with interest and penalties for tax  year 2018.

In addition, in or around February of 2020, Biden’s California accountants discovered that Biden’s 2016 Form 1040 had not been filed. The return was originally prepared in or around October 2017 and showed $15,520 in taxes due and owing. Though it was delivered to Biden at Biden’s office, this return was not filed with the Internal Revenue Service. After learning in 2020 that the Form 1040 for 2016 remained unfiled, Biden filed a Form 1040 on June 12, 2020. For tax year 2016, Biden reported $1,580,283 12 in total income and self-assessed tax due of $492,895, of which $447,234 was timely paid, leaving a balance due and owing of $45,661. Biden did not include a payment with this return. On or about October 18, 2021, this liability, plus accrued interest and penalties, was also fully paid by a third party.

Finally, after seeking an extension, Biden timely filed his 2019 Form 1040 on or about October 15th, 2020. He did not, however, pay his estimated tax due when filing for an extension as required by law. For tax year 2019, Biden reported $1,045,850 in total income and a self-assessed tax due and owing of $197,372. On October 18, 2021, this liability, plus accrued interest and penalties, was also fully paid by the same third party

[snip]

THE COURT: All right. In Exhibit 1, there are references to taxes paid by a third party on Mr. Biden’s behalf of $955,800, and $956,632, as well as $492,000 in 2016 and $197,000 for 2019. Just looking at 2017 and 2018 which are the subject of this case, those numbers add up to more than $1.9 million. Can you help me square that with the relevant conduct.

MR. WISE: So the amount that was paid by the third party includes significant penalties and interests which we have not included in the loss stipulation that’s in paragraph 5A. The paragraph 5A is the taxes and there is a dispute as to what the taxes were based on the business deductions and that’s something that the parties will address in their sentencing memorandum, but this number is loss without inclusion of the penalties and interest.

Nevertheless, the indictment signed by Leo Wise obtained on December 7 doesn’t mention that the taxes were paid.

Indeed, there’s no record that the grand jury ever learned that, while there’s still a dispute about 2018, the taxes have been paid, with penalties and interest.

This is what led dull-witted scribes like Devlin Barrett to state, as fact, that prosecutors alleged that Hunter failed to pay his taxes, even though their own stories claim to know what happened in July, when that very same prosecutor said Hunter did pay the taxes.

Federal prosecutors alleged in a 56-page indictment filed last month that Hunter Biden, who moved to Los Angeles in 2018, failed to pay at least $1.4 million in federal taxes from 2016 through 2019. The charges include failing to file and pay taxes, tax evasion and filing false tax returns. Three of the charges are felonies and six are misdemeanors.

And it also lies at the core of the debate over whether anyone normally would be charged for such a fact set. Which is why the conflict between what Leo Wise said in July and what Leo Wise said in December should be a central part of the story.

In June, at least according to Chris Clark, David Weiss’ top AUSA said there was no ongoing investigation. In November, under pressure from Congress, David Weiss said there was.

In July, Leo Wise said that (aside from the dispute about 2018), the taxes have been paid, with interest. In December, Leo Wise told a grand jury — along with credulous journalists — they had not been.

One cannot report, with certainty, on what has happened until you account for those two incompatible claims from Hunter Biden’s prosecutors. One cannot make any claims about how this will end up until one determines whether David Weiss lied to Congress or Chris Clark lied in his sworn declaration.

And yet none of that appeared in the arraignment coverage yesterday.

“Struck By Lightning:” The Deliberate Trump Politicization of the Hunter Biden Investigation

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In his latest podcast, Popehat delivered this opinion about the two indictments of Hunter Biden and Abbe Lowell’s aggressive attack on them.

In a way — and I don’t think this comparison is going to endear me to people — I think he’s doing very much what Trump is doing with his cases all over the place, calling them out about how they’re political and illegitimate and that type of thing. The truth is, the gun case is complete chickenshit but the tax case is absolutely the real deal, it’s something that, you know, if you get struck by the lightning that is IRS deciding to select you out to investigate you, you will absolutely get charged on that stuff and you’ll absolutely go to jail on that stuff. So it’s not a political case to that extent. The way it’s been handled might be political.

You should definitely listen to or read the podcast, as he and Josh Barro are two of the only people who even pretend to have read the motions to dismiss Hunter filed last week and you should never read just me on a topic.

They don’t mention two aspects of the tax indictment, which impact on whether it’s “absolutely the real deal.” First, something that even Weiss included in the plea statement but left out of the indictment: that Hunter has paid off his tax debt, along with up to $400,000 in penalties, for the charged years. And second, that Hunter’s lawyers at least claim (but have not substantiated publicly) that his accountant overstated his income for 2018, the year for which felonies have been charged. So (Hunter’s lawyers claim) when Hunter did belatedly pay his taxes, he overpaid them. Abbe Lowell has claimed that would mean the indictment would violate IRS guidelines, but it will also make it much hard to prove that whatever misrepresentations Hunter made in his 2018 tax filings were intentional.

To their credit, Popehat and Barro managed to lay out the content of much of the four motions to dismiss submitted last week, which I summarized this way.

The only things they missed were the Appropriations claim against David Weiss’ appointment, and the Separation of Powers claim about Congressional influence — though perhaps Popehat meant to invoke that in his characterization of the MTD as “it’s all politics.”

What’s interesting about the podcast is that Popehat continues to cling to his article of faith that Hunter’s claims of politics (he has made the same claims about Hunter’s accusations, which are backed by public evidence, that Rudy Giuliani and others have hacked his data) are all prospective: an attempt to taint anything Trump might do in a second term as political.

In the event that Donald Trump is elected President [Hunter Biden] is likely to be charged with a lot worse and a lot crazier stuff. And so what they’re really doing, I think, is using every situation that comes up as ways to get ahead of that, to get intel on it, to undermine it, and that type of thing.

Popehat gets a great deal right about this case (including the near-impossibility of winning a selective and vindictive prosecution claim). But it borders on insanity that he would read that MTD and then dismiss Hunter’s claims of politicization as an attempt to stave off future attacks from Trump.

The MTD about which Popehat made this argument — that the possibility of Trump politicization is all prospective — cited the following evidence:

  • In testimony he would subsequently caveat, Joseph Ziegler claimed that Bill Barr made the decision to put the tax investigation into Hunter Biden under David Weiss in May 2019, which would have been days after Joe Biden declared his run for President.
  • During his first impeachment, Trump sent tweets attacking Hunter Biden on October 6, October 10, October 12, October 13, November 15, 2019.
  • Rudy Giuliani traveled the world searching for dirt on Hunter Biden and got DOJ to open a dedicated channel, via Scott Brady, to accept the information he obtained.
  • Trump sent another tweet attacking Hunter on September 24, 2020.
  • Weeks before the election, Rudy Giuliani obtained what Hunter calls, “stolen electronic data,” manipulated it, and released it in an attempt to undermine Joe Biden’s election.
  • After Rudy released the “laptop,” President Trump led chants of “Lock him up” about Hunter Biden.
  • In the wake of the laptop release in mid-October 2020, Trump raised the Hunter prosecution with Bill Barr.
  • Bill Barr admitted having personal knowledge of how information from Scott Brady got shared with Weiss’ team, including on October 23.
  • In December 2020, after the investigation into Hunter was publicly revealed as a tax investigation but while Trump was still President, Trump tweeted twice more about the investigation.
  • On December 27, 2020, in the same hours-long phone call where Trump first floated replacing Jeffrey Rosen with Jeffrey Clark, Trump also raised the Hunter Biden investigation.
  • During his January 6 speech, Trump claimed that if more people had known about the contents of the “laptop,” he would have won and he also taunted, “Where’s Hunter?”
  • Trump posted about Hunter on March 31, 2023 after learning about the Alvin Bragg indictment.
  • Trump posted about the Hunter Biden plea deal three times on the day it was released on June 20, 2023, in one case calling it “The Hunter/Joe Biden settlement.”
  • On June 24, after the IRS agents’ transcripts were released, Trump made two more posts suggesting allegations against Hunter tied to Joe.
  • On June 26, Trump linked to a post falsely claiming that Hunter had shared classified documents with “foreign regimes.”
  • On July 11, Trump accused Weiss of giving Hunter a “traffic ticket instead of a death sentence.”
  • On November 23, Trump asked whether Joe had paid taxes on money he [claimed Joe had] made from Hunter.

This is the document Popehat claims to have read and decided Hunter was only doing this to claim that Trump was acting politically in some future prosecution.

And that’s not even the only evidence about Trump’s past politicization that Lowell has cited. In the subpoena request Abbe Lowell invoked in the MTD package, Hunter’s lawyer further described that Richard Donoghue ordered Weiss’ office to accept a briefing on an FD-1023 reporting a claim Mykola Zlochevsky made in late 2019, a briefing that occurred on October 23, 2020. By date, this briefing happened after Trump called Barr about the Hunter Biden investigation.

In a letter Lowell sent to Matthew Graves about Tony Bobulinski’s interview with the FBI on October 23, 2020, he noted that:

  • Bobulinski was Trump’s guest at the Nashville presidential debate on October 22.
  • Bobulinski’s claim to have attended a 2017 meeting with CEFC with Hunter Biden, at which — he claimed — Hunter received a diamond, conflicts with Bobulinski’s own communications from the period.
  • In her book, Cassidy Hutchinson described a clandestine meeting between Bobulinski and Mark Meadows weeks afterwards at which Trump’s Chief of Staff handed Bobulinksi something that might be an envelope; the excerpt describes Meadows having the meeting because, “The boss asked him to meet up with Tony Bobulinski.”

Plus, there’s a bunch that Lowell has not (to my knowledge) cited.

For example, FBI Agent Johnathan Buma claims that in January 2019, two Ukrainians with ties to the Prosecutor General’s Office — later deemed to be part of an information operation — shared allegations about Hunter Biden and Burisma with the Los Angeles US Attorney’s Office. The allegations were passed onto Baltimore FBI agents investigating Hunter Biden. The Ukrainians were later invited to an event hosted by the Trump White House.

In IRS agent Ziegler’s testimony, he described that it took him three tries before justifying a criminal (rather than civil) investigation into Hunter Biden; as part of that, he made claims about 2014 payments from Burisma that are explained in the tax indictment against Hunter. He similarly described learning, second-hand, that his supervisor during the first full year of the investigation documented repeated examples of potential improper political influence.

[M]y IRS supervisor, Matt Kutz, created memos which he put in the investigative files regarding the investigation potentially violating the subject’s Sixth Amendment rights. He also referred to Donald Trump’s tweets at the time.

On July 25, 2019 Trump withheld congressionally appropriated funds to support Ukraine to get Volodymyr Zelenskyy to announce an investigation of Hunter Biden and Burisma, asking him to contact Barr and Rudy, the men who would later set up the channel via which information was ultimately shared with the Hunter Biden team. Two impeachment witnesses testified that Zelenskyy brought up a Burisma investigation, though the name does not appear in the transcript.

In addition to the details of Scott Brady’s task that Lowell did cite, Brady also described that he and Weiss spoke every four to six weeks about “the assignment.” Brady also describes getting Weiss to order his team to provide Brady details of the Hunter Biden investigation, which Brady described as “interrogatories.”

On September 12, Tim Thibault testified that, after such time as Steve Bannon would have had the “laptop” in 2020, the FBI made his propagandist Peter Schweizer an informant regarding matters pertaining to Hunter. The lead FBI supervisor on the Hunter Biden case asked the Washington Field Office to stop sending Schweizer’s reporting because it would give Hunter’s attorney, if he were ever charged, evidence to discredit the investigation.

FBI supervisor Thomas Sobocinski and David Weiss, along with other House Judiciary Committee witnesses, have testified that after the IRS agents’ claims went public — and so after Trump posted six times between when the plea deal was released and the hearing at which it failed — the investigative team, especially AUSA Lesley Wolf, began to get “pervasive” threats.

These are the kinds of Trump attacks that, the DC Circuit has found, have “real-world consequences” on those he attacks.

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.

In all the litigation about the danger of Trump’s rhetoric, there has been no discussion of threats that Trump’s comments (or the members of Congress) may have ginned up against Hunter Biden’s prosecutors.

Again, all this evidence of Trump’s effort to dictate prosecutorial outcomes for Joe Biden’s son have already happened. They happened while he was President and while he was running against Hunter’s father. None of this is remotely speculative, and much of it has been described by Republican witnesses.

And the latter examples — the stuff Trump did while President — are particularly problematic. That’s because (as Abbe Lowell has noted on at least two court filings) it is a crime for the President to order up IRS investigations of someone.

77 President Trump initiated the investigation of Mr. Biden illegally. 26 U.S.C. § 7217 provides: “It shall be unlawful for any applicable person [including the President] to request, directly or indirectly, any officer or employee of the Internal Revenue Service to conduct or terminate an audit or other investigation of any particular taxpayer with respect to the tax liability of such taxpayer.”

A separate law prohibits someone, who does not need to be President anymore, to intimidate someone investigating tax crimes.

After unlawfully requesting that Mr. Biden be investigated, President Trump violated 26 U.S.C. § 7212 of the Internal Revenue Code by interfering with that investigation. The section has two substantive provisions. The “Officer Clause” forbids “corruptly or by force or threats of force (including any threatening letter or communication) endeavor[ing] to intimidate or impede any officer or employee of the United States acting in an official capacity under [the Internal Revenue Code].” (emphasis added). The second clause, the “Omnibus Clause,” forbids “corruptly or by force or threats of force (including any threatening letter or communication) obstruct[ing] or imped[ing], or endeavor[ing] to obstruct or impede, the due administration of [the Internal Revenue Code].” (emphasis added). Mr. Trump has done both.

Here, Lowell overstates. I’m aware of no evidence that Trump ordered up the IRS investigation of Hunter, like he did Peter Strzok and others.

The available evidence shows that at least one strand of the investigation into Hunter Biden  — the one under Joseph Ziegler — started from a Suspicious Activity Report. And Barr is one of the people who would have been permitted to ask for an investigation into someone.

But it is nevertheless the case that the supervisor overseeing the investigation deemed Trump’s public demands for an investigation to be inappropriate. And at a time in 2020 after Trump knew there was an IRS investigation into Hunter, at a time he remained President, he privately and publicly pushed for an aggressive investigation. Those efforts, including publicly issued threats, have continued to this day.

The DC Circuit described how Trump uses social media posts to address people he knows are likely aware of his posts.

So too if the defendant posts a message on “social media knowing that [witness] is a social media follower of his,” id. 33:20–23, or that the message will otherwise likely reach the witness. In each of these scenarios, the defendant’s speech about witness testimony or cooperation imperils the availability, content, and integrity of witness testimony.

Accordingly, the district court had the authority to prevent Mr. Trump from laundering communications concerning witnesses and addressing their potential trial participation through social media postings or other public comments.

So whether or not Trump ever directly spoke to someone in the IRS about the investigations into Hunter Biden, under this theory of “laundering” communications, his tweets would have qualified as indirect communication.

Sure, a second Trump term will be worse.

But Hunter Biden is demonstrably among the handful of people who have experienced the kind of wholesale politicization of criminal investigations journalists imagine will only come in a second Trump term.

Udpate: Added some more details from Brady’s testimony.

Update: Fixed intro to DC Circuit opinion.

Hearing Footsteps: The Paper Trail of Political Interference David Weiss Is Trying to Bury

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Update: Given confusion mentioned in comments, I thought I’d do another handy dandy chart to describe the motions to dismiss, like I did for Trump’s. This post addresses the MTD Selective Vindictive Separation of Powers. 

Abbe Lowell’s motion to dismiss the gun charges against Hunter Biden for selective and vindictive prosecution and violation of separation of powers only asks for discovery in passing.

Often, MTDs for selective prosecution are requests for discovery. For comparison, in a bid to argue that Jan6er David Judd was charged more harshly than Portland rioters, his excellent public defender, Elizabeth Mullin, conceded that she did not yet have proof he was treated worse because he was a Trump supporter, but then asked for six specific things to prove the case.

Mr. Judd does not yet contend the allegations below are sufficient for dismissal of the charges against him. However, they are sufficient for the Court to compel specific discovery regarding disparities in charging decisions.

[snip]

(1) Communication between the Department of Justice (“Main Justice”) and the U.S. Attorney’s Office for the District of Oregon regarding prosecution of defendants arrested in connection with protests in 2020.

(2) Communication between management at the U.S. Attorney’s Office for the District of Oregon and line Assistant U.S. Attorneys regarding prosecution of defendants arrested in connection with protests in 2020.

(3) Communication between the Department of Justice (“Main Justice”) and the U.S. Attorney’s Office for the District of Columbia regarding prosecution of defendants arrested in connection with the January 6 demonstrations at the U.S. Capitol.

(4) Communication between management at the U.S. Attorney’s Office for the District of Columbia and line Assistant U.S. Attorneys regarding prosecution of defendants arrested in connection with the January 6 demonstrations at the U.S. Capitol.

(5) Communication between the Department of Justice (“Main Justice”) and the U.S. Attorney’s Office for the District of Columbia regarding prosecution of the D.C. Fireworks Defendant.

(6) Communication between management at the U.S. Attorney’s Office for the District of Columbia and line Assistant U.S. Attorneys regarding prosecution of the D.C. Fireworks Defendant.

Mullin’s bid didn’t work. Judge Trevor McFadden ruled that January 6 was different than Portland — though he did use her argument to treat Jan6ers leniently at sentencing.

Compare that statement with this one, from page 50 of Abbe Lowell’s 60-page selective and vindictive MTD, where he asserts that this is the exceptional case where a defendant can prove vindictive prosecution without discovery.

Cases where a defendant can show actual vindictiveness without discovery may be few and far between, but this is surely one.

Lowell closes the entire brief with a similar statement, footnoted with the assertion that, “Were there to be any doubt at all, the basis for discovery and an evidentiary hearing has well been established.”

“[O]ur society is not bettered by law enforcement that. . . is not conducted in a spirit of fairness or good faith.” Banks, 383 F. Supp. at 397. This prosecution falls in that category, and the Court should dismiss the indictment. 109

109 As stated through this and the other motions to dismiss, the record available to the Court supporting dismissal is extraordinary. Were there to be any doubt at all, the basis for discovery and an evidentiary hearing has well been established.

This argument — that if Hunter Biden hasn’t met his burden for outright dismissal, then surely he should be granted discovery — is four other times relegated to a footnote.

One such footnote appears in a passage purporting to lay out the legal standards that govern this issue, in which Lowell cites a bunch of precedents from other circuits about dismissal in case of selective, vindictive, or separation of powers violations.

When a prosecution is selective, vindictive, or violates separation of powers, the tainted charges must be dismissed. See id. at 700 (“Preservation of this system of checks and balances requires the courts to invalidate actions that. . . undermine the authority and independence of one or another coordinate Branch.”) (citations omitted); In re Aiken Cnty., 725 F.3d 255, 264 n.7 (D.C. Cir. 2013) (“If the Executive selectively prosecutes someone based on impermissible considerations, the equal protection remedy is to dismiss the prosecution . . . .”).42

42 Where a defendant has not carried his burden, but has demonstrated a “colorable claim,” discovery and an evidentiary hearing should be permitted. United States v. Heidecke, 900 F.2d 1155, 1159 (7th Cir. 1990); United States v. Jones, 159 F.3d 969, 978, n.8 (6th Cir. 1998) (granting discovery to give the defendant “the opportunity to move to dismiss the indictment” for selective prosecution). See Mr. Biden’s Discovery Mot (filed concurrently). [my emphasis]

Armstrong, the precedent making it almost impossible for a defendant to get discovery, the one that Principal Senior Assistant Special Counsel Leo Wise cited 48 times in his bid to defeat subpoenas, does not appear in this section (though it does appear in several other places and in the discovery motion).

As this footnote does, two other such footnotes specifically cite a motion for discovery and evidentiary hearing filed the same day. In those other two instances, Lowell cites the line in this NYT article describing that David Weiss told an associate that he preferred not to bring any charges because the average American would not be charged for these crimes.

[T]he New York Times reported that “Mr. Weiss told an associate that he preferred not to bring any charges, even misdemeanors, against Mr. Biden because the average American would not be prosecuted for similar offenses.” 9

9 Michael Schmidt et al., Inside The Collapse Of Hunter Biden’s Plea Deal, N.Y. Times (Aug. 19, 2023), https://www.nytimes.com/2023/08/19/us/politics/inside-hunter-biden-plea-deal.html. The article does not disclose the source. The account is most likely true considering the charging statistics, DOJ enforcement policies described below, and Mr. Weiss’s initial reluctance in prosecuting Mr. Biden on this charge. If it is true, it is extremely damning evidence of discriminatory prosecution. Thus, to the extent there is any doubt, the Court should grant Mr. Biden’s request for discovery and an evidentiary hearing. See Mr. Biden’s Discovery Mot. (filed concurrently).

[snip]

DOJ confirmed its own improper motive when, under fire from Congress and the public, it resorted to a rarely used gun charge that reports indicate Special Counsel Weiss himself admitted would not have been brought against the average American.85

85 Michael S. Schmidt et al., Inside The Collapse Of Hunter Biden’s Plea Deal, N.Y. Times (Aug. 19, 2023), https://www.nytimes.com/2023/08/19/us/politics/inside-hunter-biden-plea-deal.html. As noted above, the article does not disclose the source, and to the extent there is any doubt about the veracity of the claim, the Court should grant Mr. Biden’s request for discovery and an evidentiary hearing. See Mr. Biden’s Motion for Discovery and an Evidentiary Hearing (filed concurrently). [my emphasis]

I have repeatedly predicted we’d see this language in Hunter’s selective prosecution motion, because it provides what virtually no defendant ever has: proof that the prosecutor himself recognized he was selectively prosecuting a defendant.

If Lowell can find these witnesses — experts on gun crimes who said Hunter was charged only because he was prominent and a Weiss associate whom Weiss purportedly told he knew that average Americans would not be prosecuted for such crimes –and get them to testify, then he would have what virtually no other defendant would: Proof that the prosecutor who brought the charge knew that similarly situated defendants would not be charged, but charged the defendant anyway.

But I assumed the proof that David Weiss had said that would require witness testimony.

Perhaps it doesn’t.

Consider that the last instance (in this filing) where Lowell relegates a request for discovery and an evidentiary hearing to a footnote, he makes an assertion — that DOJ has long believed that Hunter’s rights must take precedence over efforts by Trump to interfere in this prosecution — that he does not cite.

But as DOJ itself has long believed, Mr. Biden’s rights must come first and efforts by members of Congress and the former President to interfere have tainted this prosecution beyond purification. As a result, there is no constitutional option but to dismiss this case.40

40 If the Court has any doubt that the material set out in this motion is sufficient to warrant outright dismissal of these charges, it should permit discovery and conduct an evidentiary hearing. Mr. Biden has already sought discovery from DOJ and information from third-parties with knowledge of former President Trump’s influence, and DOJ has not responded to the requests and filed an opposition for this information to be disclosed. [my emphasis]

To be sure, we know that David Weiss’ investigative team, led by Lesley Wolf, made repeated efforts — not always successful — to shield the investigative team from Trump’s efforts to interfere.

For example, Tim Thibault told the House Judiciary Committee that one reason he shut down Peter Schweizer as a source was because then-Supervisory Special Agent Joe Gordon reached out, insinuating they already had laptop-based evidence, and said that if a case against Hunter Biden ever went to trial and Hunter’s attorneys found the FD-1023 from Schweizer that the Washington Field Office had shared with the Hunter team, it would give Hunter’s attorneys ammunition.

A And then fast-forward to sometime in October, I received an unsolicited call —

Q Uh-huh.

A — from the supervisor of the Hunter Biden case. I knew him because he had been assigned to Washington Field Office as the case agent.

[snip]

A And I said: Okay. What are your concerns? And basically said: Look, the information isn’t of any value to us, number one. My — I deduced from everything he said that they already had the information —

Q Uh-huh.

A — from some other source, some other channel, maybe not a human source but some other channel. He also said that that person was politically connected —

Q Uh-huh.

A — and partisan in his view and he was concerned about the source being on media platforms.

[snip]

A So I was getting a call from this supervisor. And my — my takeaway was we don’t need your source reporting and also: Why are you sending a file to our — to our case file that we didn’t know about? Right? So Washington Field Office wrote this 1023 and it went to headquarters and it went to Baltimore.

[snip]

A I understand you don’t need the reporting anymore. I understand that if this goes to trial, Hunter Biden’s attorney —

Q Uh-huh?

A — could have some ammunition.

Regarding that very same laptop, Gary Shapley complained to Congress that Weiss’ office had prevented Joseph Ziegler from seeing a report addressing the “quality and completeness of imaged/recovered information from the hard drive.”

Ziegler himself complained that he hadn’t been able to interview Tony Bobulinski — the guy whom Donald Trump personally hosted at an election debate and who subsequently had a clandestine meeting with Trump’s chief of staff — because, prosecutors told him, Bobulinski, “was not viewed as a credible witness.”

In investigative team meetings that occurred after this, I can recall that agents on the investigative team brought up on multiple occasions to the assigned prosecutors that they wanted to do an interview of Bobulinski with the assigned case agents. I can recall being told that they would think about it and then ultimately being told there was no need for the team to interview Bobulinski and that Bobulinski was not viewed as a credible witness.

And Scott Brady not only confirmed Gary Shapley’s claim that Lesley Wolf repeatedly refused to be briefed by Scott Brady’s team because she didn’t want dirt from Rudy Giuliani, but also that David Weiss had to — and did — intervene before Wolf would share information about her investigation with Brady.

Okay. So, looking at paragraph four on page 2, as it continues onto page 2, the second full sentence, it says: The prosecution team discussed the Hunter Biden related work of the Pittsburgh USAO on several occasions, as it was a line item on the recurring prosecution team’s call agenda for a long period of time. Assistant U.S. Attorney Lesley Wolf told us the Pittsburgh USAO and U.S. Attorney Scott Brady requested to brief the Delaware USAO’s Hunter Biden’s investigative team on multiple occasions, but they were turned down by AUSA Wolf and the Delaware USAO. Is it accurate that you had requested multiple times, you or your office, to brief the Delaware U.S. Attorney’s Office?

A Yes.

[snip]

Chairman Jordan. Got it. Got it. Now, also, based on what you said, throughout the process, you said that the Delaware U.S. Attorney’s Office wasn’t willing to cooperate, so much so that you had to send interrogatories?

Mr. Brady. Yes, we had conversations, asked for communication and a flow of information, mostly one way from us to them, but also, as I testified, we wanted to make sure we weren’t duplicating what they were doing. They would not engage. And so finally, after me calling Mr. Weiss and saying can you please talk to your team, this is important, this is why we want to interact with them, the response that we got back is you can submit your questions to our team in written form, which we did.

This is an important instance where, at least per Scott Brady, Lesley Wolf was attempting to prevent the politicization of the case, but David Weiss overruled her.

Finally, Shapley also provided documentation of his own complaint that, “This investigation has been hampered and artificially slowed by various claims of potential election meddling.”

There are abundant examples where Lesley Wolf attempted to shield the investigative team from Trump’s efforts to intervene. Lowell cites none of them, nor other public evidence, such as Ziegler’s testimony that there were emails (probably his original supervisor’s memorialization of Trump’s improper influence). Instead, he asserts without citation that DOJ has long believed that Hunter’s rights must come first.

I’m mindful that, in the exhibits accompanying his motion to dismiss because the diversion immunizes Hunter Biden from further charges, Lowell also didn’t include the bulk of documentation that NYT and Politico appear to have relied on for stories about how the plea deal collapsed.

That is, it’s possible that one of the documents that NYT received records someone — possibly Wolf — sharing with Chris Clark the explanation that Weiss really wanted to avoid any charges, even misdemeanors. If Abbe Lowell has that document, he’s playing coy.

Indeed, that’s an important dynamic in the motion for discovery and an evidentiary hearing. In a footnote (footnote six in this post), it purports to support both the selective and vindictive motion and the immunity one.

1 To the extent the Special Counsel disputes the facts laid out in Mr. Biden’s Motion to Dismiss the Indictment Based on Immunity Conferred By His Diversion Agreement and the Declaration of Christoper Clark (his former counsel), filed contemporaneously, as noted in that Motion at Note 1, an evidentiary hearing where all the participants to the negotiations (including U.S. Attorney David Weiss) should be held on that motion as well.

The footnote it cites in the immunity motion (footnote seven) asks Judge Maryanne Noreika, if she needs more proof regarding the immunity conferred by the diversion agreement, to include David Weiss (and “responsible members of his prosecution team,” which would include Wolf) among the witnesses.

If the Court believes that parol evidence should be considered, Mr. Biden requests an evidentiary hearing in which all participants in the negotiation of the Diversion Agreement, including Mr. Weiss and the responsible members of his prosecution team, can be called as witnesses to address the extensive recapitulation provided in Mr. Clark’s Declaration.

Even in the discovery motion, Lowell doesn’t provide a list of things like the one that David Judd’s attorney included in hers.

Instead, he simply points to the October 8 and November 15 discovery requests he already made and describes that Weiss’ team responded with silence.

On October 8, 2023 and November 15, 2023, as well as in follow-up correspondence on November 15, Mr. Biden wrote to the prosecution with tailored and enumerated discovery requests, many of which are routine in a criminal defense case such as this one. 2 The October 8 requests included customary Rule 16 discovery requests and 19 specific requests under Brady, Agurs, Giglio, and the Fifth Amendment, Rule 26/Jencks Act and similar requests. These requests have largely been met with silence and will be the subject of a motion to compel should this case proceed. However, the November 15, 2023 requests as well as the motion for Rule 17 subpoenas filed that same day seek information bearing directly on the issues addressed in the motions to dismiss filed concurrently herewith—selective and vindictive prosecution, political interference, and separation of powers concerns. The prosecution has not responded to or addressed these requests by Mr. Biden in any fashion. 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.”3 [my emphasis]

The November 15 discovery request is similar to the subpoena request from the same day (which Lowell invokes in footnote 3), though it includes any communications discussing an investigation of Hunter that involve Geoffrey Berman as well.

1. All documents and records reflecting communications from January 20, 2017 to the present (the “Relevant Time Period”) to, from, between, or among Donald J. Trump, William P. Barr, Geoffrey Berman, Scott W. Brady, Richard Donoghue, or Jeffrey A. Rosen relating to or discussing any formal or informal investigation or prosecution of Hunter Biden, or a request thereof.

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

SDNY investigated both Hunter and James Biden as part of their investigation into Patrick Ho and Gal Luft, so there may be communications between Berman and Weiss on that topic. Berman’s investigation of Lev Parnas would have covered the October 2019 meeting at which Parnas believed he’d receive laptop-based dirt from a Burisma associate. Plus, Berman would have been told to stand down on Rudy Giuliani’s December 5, 2019 meeting with Andrii Derkach, in deference to Richard Donoghue. His book describes that those discussions were quite heated.

The October 8 request is — as Lowell claims — more conventional (at least on its face). It asks for the evidence Weiss has about Hunter’s addiction. It asks for affidavits in support of warrants. And some of that — a request for communications on the drafting of the plea agreement and stats on prosecutions of these gun charges — definitely would support Lowell’s motions to dismiss.

There are unsurprising additions, such as any communications regarding leaks to the press, including through cut-outs (which is how I think the October 6, 2022 leak happened).

Any documents and/or information reflecting communications between anyone in your Office or any member of the investigative team or their supervisors (including FBI and IRS agents) with any member of the press or public concerning the investigation, and any documents and/or information reflecting leaks of information concerning the investigation or prosecution of Mr. Biden to the press, any private person, or any government official or employee who was not authorized to receive such disclosure.

Sure, this likely aims to discover whether Shapley and Ziegler had any role, including through cut-outs, in the leaks in this case. But as I noted in my post on that NYT story, there are several claims in it attributed to a “senior law enforcement official with knowledge of the situation” who claimed to have knowledge of things only David Weiss would know.

Then there are things that look innocuous, but might be particularly problematic for Weiss. Given my suggestion above that there may be documentation of a claim that Weiss told an associate he didn’t want to charge Hunter at all, a collection of all the communications anyone in his office had with lawyers for Hunter might pose hazards for this prosecution.

Any documents and/or information reflecting communications between anyone in your Office and any attorney representing Mr. Biden from the onset of the investigation to June 20, 2023.

Normally, when someone takes over a case from a prior defense attorney, they usually get the case file from their predecessor. Lowell would be expected to ask Clark for this. But there are at least two other sets of lawyers who would have been involved (including an investigative interview with George Mesires), which would justify this request. Complying with this request would involve Principal Senior Assistant Special Counsel Leo Wise seeing communications that David Weiss may have attempted to use him to sheep dip from this prosecution.

Then there’s a request for 302s.

A. Any draft FBI-302s, FD-1023s or interview memoranda describing such interviews.

B. Any requests by investigating agents or members of the Department of Justice to edit, revise, or otherwise change the content of any 302 or interview memorandum

This would include the FD-1023s from Peter Schweizer and the Zlochevsky informant, the 302 from Luft, as well as the draft 302 from Tony Bobulinski (and any record that DOJ intervened to prevent its completion), at least three of which Wolf attempted to keep from investigators.

Weiss may be imaging he can withhold these based on a claim that the gun charge doesn’t implicate these documents pertaining to politicized witnesses, and normally he’d be right. Except Judge Noreika already permitted Jason Smith to file an amicus, including protected grand jury materials, based in part on the argument that this has gotten so much publicity already. Plus, in both Jack Smith’s prosecutions of the former President and the serial treatment of Mike Flynn, there is arguably support for sharing such information (I asked Weiss’ spox if his team would adhere to the discovery approaches in those cases and got no response whatsoever to my question).

Finally, there are communications with Congress.

Any documents and/or information reflecting communications between any Member of Congress, Committee or Subcommittee of Congress, or congressional staff and any person at the U.S. Department of Justice, including your Office, concerning the investigation or prosecution of Mr. Biden, including the decision to bring any particular charges.

This would include the letter, cited in the selective MTD, that Chuck Grassley and Ron Johnson sent in 2021 regarding any gun charges against Hunter.

It would include the many letters sent to Merrick Garland.

It would also include the transcripts of the many interviews — including Brady, Thibault, from Lesley Wolf last week, and from Weiss himself — Jim Jordan did. At least some of those were shared with DOJ for an accuracy review. And in Weiss’ transcript, he made a claim that has already been rebutted in Chris Clark’s declaration, in which he described Weiss’ First AUSA saying there was no ongoing investigation into Hunter Biden.

This is an area where the Jack Smith precedent may be pertinent: in a response to Trump’s demand to subpoena Congress (which Lowell doesn’t do), Thomas Windom revealed that Smith shared 260 January 6 Committee transcripts with Trump. Jim Jordan has spent five months quizzing almost every member of the Hunter Biden investigative team about whether there was political interference on this case, which seems to make it relevant for any litigation about Congress’ usurpation of David Weiss’ role.

Normally, none of this would be discoverable and Principal Senior Assistant Special Counsel Leo Wise is likely to come back and say it is Jencks, which only will be relevant if these witnesses testify.

As I keep saying, normally none of this goes anywhere. I am assuredly not saying this will work.

What I am trying to lay out is that Lowell is going about via different tactics, in part by arguing this known proof of political interference is Brady (Brady about Brady!), not just evidence of selective prosecution hidden behind 48 invocations of Armstrong.

If Lowell prevails with his argument — his strongest argument, in my opinion — that Hunter is immune from prosecution on the gun charges, none of this may matter (until Lowell makes the same argument in Los Angeles, before a different Trump appointed judge). But once you get into the argument about improper influence on this case, David Weiss might begin to hear footsteps.

Garanimals in a SCIF: David Weiss’ Attempt to Sheep Dip Bill Barr’s Hunter Biden Prosecution

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On July 11, 2023, David Weiss’ First AUSA Shannon Hanson responded to an inquiry from Judge Maryanne Noreika’s courtroom deputy, Mark Buckson. He wanted to know when “the final versions of the documents” pertaining to the Hunter Biden plea deal would be completed. Hanson responded within five minutes. Before she explained that she didn’t know when they’d have the final documents, but hoped to have them to Judge Noreika by Thursday (so July 13), she described that, “I will be speaking with the team later today (I understand they are in a secure location and cannot readily be contacted at the moment.”

Hanson was describing “the team” — she had cc’ed Delaware AUSA Benjamin Wallace and Baltimore AUSAs Leo Wise and Derek Hines — as something of which she was not a part. And she was describing that team as being in a SCIF.

Hunter Biden’s attorneys included the email with their motion to dismiss based on an argument that the diversion agreement Hunter signed prohibits the indictment charging him with three gun charges. The email shows that the final documents filed with the court on July 20, by Wallace, had just one change from the version submitted on June 8, by Hanson. Wallace explained:

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

Hunter’s team submitted it to show that, following the Probation Office’s recommendation of Hunter for diversion on July 19, the parties submitted it as a finished agreement.

This motion makes a strong argument that the government entered into an agreement with Hunter for which he sacrificed his rights — including by allocuting to the facts regarding the gun purchase — and therefore must honor the contractual protections it offered to get Hunter to sacrifice those rights.

Indeed, in a footnote it goes further than that: it argues that because the immunity agreement language was in the gun diversion, all the charges tied to the informations that were before Noreika are barred, including the tax charges filed in California.

7 Although the only charges now before the Court are the gun charges in the prosecution’s lone Indictment of Mr. Biden in this District, Mr. Biden notes that the sweeping immunity of the Diversion Agreement would seem to bar any plausible charge that could be brought against him (including the recently filed tax charges in California). The only charges that are not be barred by the immunity provision are those filed in the pre-existing Informations filed against him in this District. The Diversion Agreement called for the eventual dismissal of the gun charge Information upon the conclusion of the diversion period, but the prosecution already has dismissed it. Although the Plea Agreement was not accepted on the misdemeanor tax charge Information, the prosecution has dismissed that Information as well. Consequently, the Diversion Agreement’s immunity for gun and tax-related charges would bar any similar charge from now being filed. This sweeping immunity may make it difficult for the prosecutors to appease Mr. Trump and the Republican congressmen who have criticized them, but this is the deal that the prosecutors made and it reflects their choice to place the immunity provision in the Diversion Agreement.

I’m less certain that’ll fly, but it’s a hint of where things are headed in California.

That’s what the documents show with regards to the motion to dismiss, which I’ve always said is probably Hunter’s best argument to have the indictment dismissed.

But the documents are as interesting for what they show of David Weiss’ attempt to sheep dip this prosecution — to give it a virgin birth under the direction of now-Principal Senior Assistant Special Counsel Leo Wise or, as Joseph Ziegler’s attorney described it when he invited the disgruntled IRS agent to explain how irreplaceable he was, to replace one Garanimal with another.

Mr. Zerbe. I want to make sure — you made one point. I think you need to clarify it for him. He asked if the case is going forward. I think for everybody here, explain though that it’s not just kind of Garanimals where they can swap you in and out. Talk about, you not being on the case, you have to put somebody in new, but kind of how that impacts. I just want you to understand that.

Mr. [Ziegler]. So what’s frustrating — and I think it’s obvious is he removed two of the people who have been challenging and been kind of like this is the — we’re trying to do the right thing, we’re trying to do the right thing. And it was kind of like we got loud enough, and they found an avenue to remove us. I have been told by so many people on this case that we’re where we are today because of my work. It’s 5 years of an investigation. You can’t just pick up that and move it onto someone else. And if they removed all the prosecutors, DOJ Tax, and had a brand-new team, I would understand that completely if that’s the decision that they made. But they just removed us.

Ziegler made that comment on June 1. And he was right, at that point — as he sat in a room making claims about Lesley Wolf’s conduct that documents he himself released almost four months later would substantially debunk — that “they” had not yet “removed all the prosecutors.” But they would, within days.

As Chris Clark described in his declaration describing plea negotiations, that same day, June 1, Lesley Wolf invited Clark to come to the US Attorney’s Office the next day to work on the plea agreement, in part so they could share language with David Weiss in real time.

20. On June 1, 2023, AUSA Wolf sent me an email inviting me to meet at the U.S. Attorney’s Office in Wilmington on June 2 to work together on the agreements’ specific language and provisions. The idea was for the AUSAs and defense counsel to be in the same room with access to U.S. Attorney Weiss, so that the terms could be worked out. A true and correct copy of AUSA Wolf’s June 1, 2023, email to Chris Clark is attached hereto as Exhibit H.

21. On June 2, 2023, co-counsel Matthew Salerno and I went to the U.S. Attorney’s Office in Wilmington, where the USAO presented us with its draft of a new Diversion Agreement, along with a draft Plea Agreement. This was the first time that we had seen the USAO’s draft Agreements. Each draft Agreement was accompanied by a broad and lengthy Statement of Facts, each of which had been drafted solely by the USAO in advance of the June 2 meeting. At this meeting, AUSA Wolf expressed the view that it was in Mr. Biden’s interest to have broad Statements of Facts included because the scope of immunity (under Paragraph 15 of the Diversion Agreement) would be tied to the Statements of Facts. The Agreement included a more limited immunity provision than I had discussed with AUSA Wolf or that Mr. Biden would accept. Among the revisions, during or shortly after that June 2 meeting, references to tax liability for years 2016 and 2019 were specifically added to the Plea Agreement’s Statement of Facts.

22. The AUSAs and we took turns working on the specific language of each Agreement—with AUSA Wolf running the changes by Office leadership, including U.S. Attorney Weiss. No final agreement was reached that day, and the meeting concluded with the AUSAs agreeing that the USAO would work on composing acceptable language on an immunity provision.

23. That same evening (Friday June 2), at or around 9:43 PM EST, I emailed AUSA Wolf, copying my co-counsel, and proposed one revision to Paragraph 15 of the Diversion Agreement (the provision governing immunity): that Paragraph 15 provide that “The United States agrees not to criminally prosecute Biden, outside the terms of this Agreement, for any federal crimes arising from the conduct generally described in 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.) In the email, I advised AUSA Wolf that it was “very critical for us” that the Diversion Agreement include “[t]his language or its functional equivalent.” A true and correct copy of Chris Clark’s June 2, 2023, email to AUSA Wolf, copying co-counsel, is attached hereto as Exhibit I. [emphasis original]

Wolf was still on the team when — after Clark spoke with Weiss directly on June 6 about the importance of protecting Hunter from any further legal exposure — she sent Clark new language seemingly addressing Clark’s concerns about the immunity language.

28. After extensive discussion with AUSA Wolf in which she repeatedly stated that U.S. Attorney Weiss was unwilling to revise the language of the Agreement’s immunity provision, I conveyed that if this language could not be revised, we would not have a deal and that it was the most important term in the Agreement that Mr. Biden get finality. Accordingly, I requested to speak directly with U.S. Attorney Weiss, whom I was told was the person deciding the issues of the Agreement. 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. [all emphasis in Clark’s declaration]

And Wolf was still on the team on June 8, the day when the documents were first filed with the court.

That is, Wolf was still on the team when Jim Jordan and Bill Barr had already intervened in the case.

Wolf was still on the prosecutorial team — and negotiating a plea deal that would have ruled out FARA charges — on June 7.

That’s the same day Weiss sent the first response, to a May 25 letter Jim Jordan sent Merrick Garland about the IRS agents’ complaints of being removed from the investigation. In it, he cited Rod Rosenstein’s explanation to Chuck Grassley in 2018 how congressional interference might politicize an investigation (in that case, the Mueller investigation).

The information sought by the Committee concerns an open matter about which the Department is not at liberty to respond. As then-Deputy Attorney General Rod Rosenstein wrote in 2018 in response to a request for information from the Honorable Charles Grassley, Chairman of the Senate Committee on the Judiciary:

Congressional inquiries during the pendency of a matter pose an inherent threat to the integrity of the Department’s law enforcement and litigation functions. Such inquiries inescapably create the risk that the public and the courts will perceive undue political and Congressional influence over law enforcement and litigation decision.

[snip]

Weiss might claim that he replaced Wolf with Wise and in the process had Wise reassess the prior prosecutorial decisions. But, given the date of that letter, there was never a moment he had done so before the political pressure started. David Weiss cannot claim he did so before being pressured by Jim Jordan.

And Jordan’s letter wasn’t the only political pressure. On the same day that Weiss said he couldn’t share information — the likes of which Shapley had already started sharing — because it might politicize an ongoing investigation, Bill Barr (one of the people Lowell wants to subpoena) publicly intervened in the case, insisting the FD-1023 recording Mykola Zlochevsky making a new allegation of bribery had been a live investigative lead when it was shared with Weiss in October 2020, the FD-1023 Weiss specifically said he could not address because it was part of an ongoing investigation.

On a day when Lesley Wolf remained on the case, both Jordan and Barr had already intervened. And because there was never a time that Weiss had replaced Wolf with Wise before the political pressure started, there was little time he had done so before the physical threats followed the political pressure.

But June 8 — the day the plea deal first got shared with the court — was the last day that Lesley Wolf shows up in Clark’s timeline.

She wasn’t removed for misconduct. In his testimony to the House Judiciary Committee, Weiss agreed that Wolf, “did her work on the Hunter Biden matter in a professional and unbiased manner without partisan or political considerations.” He said,

I believe she did. As I said, she served the Department for more than 16 years, and I believe her to be a prosecutor with integrity.

But per Michael Batdorf, she was, nevertheless, replaced.

On June 19, Principal Senior Assistant Special Counsel Leo Wise made his first appearance. Joseph Ziegler, a disgruntled IRS agent spreading false hearsay claims, succeeded in getting Wolf replaced.

That same day, June 19, Hanson requested that Clark modify the statement he was going to release. But, in a phone call, she told him that there was no pending investigation against Hunter Biden.

35. On June 19, 2023, at 2:53 PM EST, after I had a phone call with AUSA Hanson indicating I would do so, I emailed AUSA Hanson a proposed press statement to accompany the public release of both Informations that read, in part, “I can confirm that the five-year long, extensive federal investigation into my client, Hunter Biden, has been concluded through agreements with the United States Attorney’s Office for the District of Delaware.” (Emphases added.) A true and correct copy of Chris Clark’s June 19, 2023, email to AUSA Hanson is attached hereto as Exhibit P.

36. Shortly after that email, I had another phone call with AUSA Hanson, during which AUSA Hanson requested that the language of Mr. Biden’s press statement be slightly revised. She proposed saying that the investigation would be “resolved” rather than “concluded.” I then asked her directly whether there was any other open or pending investigation of Mr. Biden overseen by the Delaware U.S. Attorney’s Office, and she responded there was not another open or pending investigation. Thereafter, at 4:18 PM EST that day, I sent AUSA Hanson a revised statement that read: “With the announcement of two agreements between my client, Hunter Biden, and the United States Attorney’s Office for the District of Delaware, it is my understanding that the five-year investigation into Hunter is resolved.” (Emphases added.) The new statement revised the language from “concluded” to “resolved,” a stylistic change that meant the same thing. A true and correct copy of Chris Clark’s June 19, 2023, email to AUSA Hanson is attached hereto as Exhibit Q [Clark’s italics, my bold]

I hope to hell Clark has notes of that conversation, because the assertion that there was no pending investigation of Hunter Biden on June 19 directly conflicts with a claim that David Weiss made to the House Judiciary Committee.

On November 7, David Weiss repeated a claim his office made when they first announced the deal: that it was ongoing. “I can say that at no time was it coming to a close,” Weiss told the House Judiciary Committee. “I think, as I stated in the one statement I made at the time … the investigation was continuing. So it wasn’t ending there in any event.”

That is, Weiss’ First AUSA, Shannon Hanson, allegedly told Clark something that directly conflicts with something Weiss said to Congress.

That may be why Abbe Lowell, while arguing that no hearing is necessary to dismiss the indictment based on the contract that existed between the government and Hunter Biden, said that if Judge Noreika thinks she does need a hearing, then to please have David Weiss prepared to testify as a witness.

If the Court believes that parol evidence should be considered, Mr. Biden requests an evidentiary hearing in which all participants in the negotiation of the Diversion Agreement, including Mr. Weiss and the responsible members of his prosecution team, can be called as witnesses to address the extensive recapitulation provided in Mr. Clark’s Declaration.

It’s going to be a lot harder for Weiss to claim that US Attorneys-turned-Special Counsels can’t testify when he was willing to testify to Congress.

This is undoubtedly why Lowell asked to be able to subpoena Bill Barr’s communications, through the present, about the Hunter Biden investigation — a version of which he made in formal discovery as well (Lowell also noted Barr’s recent comments on the investigation in the selective and vindictive prosecution MTD). Because Bill Barr intervened in this case before such time as Wolf was apparently removed and replaced by Principal Senior Assistant Special Counsel Leo Wise. Barr intervened publicly, and given Wise’s concerns about DOJ materials in the possession of former DOJ employees in his response to that subpoena request, it seems acutely likely that Weiss recognizes that Barr intervened in a way that shared privileged information.

Likewise, specific regulations govern the disclosure of DOJ materials in the possession of former DOJ employees, and the government is unable to assess the applicability or propriety of disclosure without identification of the specific documents. See 28 C.F.R. § 16.26 (outlining considerations governing appropriateness of disclosure); see generally 28 C.F.R. pt. 16, subpt. B (proscribing Touhy regulations for disclosure of official materials, including those held by former DOJ employees); United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). Only once those materials are specifically identified can the government assess the appropriateness of disclosure, including whether such materials are privileged

Worse still, per Weiss’ testimony in November, this effort to mine the investigation into Mykola Zlochevsky that Barr personally orchestrated remains ongoing — or remained ongoing until such time, CNN recently reported, as it closed the investigation into Zlochevsky’s changed statements about the Bidens around the same time DOJ’s criminal investigation into him was closed down by Bill Barr’s DOJ.

When Steve Castor asked about the FD-1023 that, per Chuck Grassley, was the result of Scott Brady’s effort to mine the recently closed Zlochevsky investigation, David Weiss responded that it was part of an ongoing investigation.

Q Are you familiar — let’s mark this as the next exhibit — with an FD-1023 dated June 30, 2020, summarizing a confidential human sources meeting with Burisma executives during which they discussed bribes allegedly paid to Joe Biden and Hunter Biden?

A I’m sorry. What was your question about this document?

Q Are you familiar with this?

A I’m not going to comment on that. I appreciate your question, but it concerns a matter that is subject to an outstanding investigation. It’s something that I absolutely cannot comment on either way. [my emphasis]

This is why I’m interested in Hanson’s description that “the team” was in the SCIF on July 11. Wise and Hynes are — or were, until getting their big promotion to Senior Assistant Special Counsels — Baltimore AUSAs. There’s no reason for them to be in SCIF together with Wallace except on the Hunter Biden case. There is no conceivable classified information in the two Hunter Biden indictments (one, two).

But on July 10 — the day before Hanson said “the team” was in a SCIF — Weiss told Lindsey Graham that the FD-1023 was part of an ongoing investigation. And on November 7, Weiss told Steve Castor that it was part of an ongoing investigation.

And the possibility of a FARA charge is what Leo Wise used on July 26 to blow up an investigation that — as of June 19 — was done.

There is a good deal of reason to believe that David Weiss used the effort Bill Barr set up four years ago to launder dirt from Russian spies into the Hunter Biden investigation as an excuse, after private citizen Barr had intervened in this investigation, to reopen the investigation after Republicans demanded it.

Documents

Motion to dismiss because the diversion agreement prohibits the gun charges

What Might Happen If Hunter Biden Refuses to Testify (Behind Closed Doors)

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Update: Hunter did, as I supposed here, show up in DC only to make a public statement. 

Because a dumbass Congressman from Kentucky has not told Hill journalists what was in Hunter Biden’s motions to dismiss the other day, at least some of them have no conceivable way of knowing what’s in there, much less the specifics.

As I noted, along with the selective prosecution claim that Katy Tur was sure was the totality of it and the vindictive prosecution that was also obvious, Abbe Lowell also argued that the House GOP has usurped DOJ’s prosecutorial authority and effectively forced David Weiss to charge Hunter Biden with 6 felonies.

No one appears to know whether Hunter Biden will show up for his scheduled 9:30 deposition today, and if he does, whether he’ll do the thing virtually all defense attorneys would advise — to simply invoke the Fifth — or whether he’ll just refuse to answer questions unless a live camera is rolling. But if he does anything but invoke the Fifth, that separation of powers claim is going to take on vastly new significance.

Before I explain why, let me first talk about some wild coincidences. First, Hunter filed the motions to dismiss on Monday, two days before this subpoena, based off a requested schedule change Abbe Lowell made on October 13 and Judge Maryanne Noreika approved on October 19. James Comer sent Hunter the subpoena, setting today’s date and time, back on November 8. According to reports, only in recent weeks have Comer and Jim Jordan and Speaker Mike Johnson decided they’ll hold the vote to authorize the impeachment inquiry that is one of two bases on which Comer issued the subpoena to Hunter this afternoon — after the scheduled time for the deposition that has been scheduled for over a month. And the suit that resulted, yesterday, in NY’s top court issuing an order for redistricting by February was first filed on June 28, 2022; Dave Wasserman says the decision could endanger the seats of five GOP Congressmen, as well as flipping the seat recently vacated by George Santos.

Abbe Lowell didn’t mastermind those coincidences. In fact, Speaker Mike was the one who made the only recent decision: to schedule the impeachment inquiry vote that would give more legal authority for the subpoena issued to Hunter on November 8, for after the scheduled Hunter deposition. On December 6 — the day after Speaker Mike decided to schedule an impeachment inquiry vote — Comer and Jordan sent a letter threatening to initiate contempt proceedings, “If Mr. Biden does not appear for his deposition on December 13.” But Congress is scheduled to leave town tomorrow and this Congress claims to have a rule that members get notice before any votes.

Republicans say they have the votes to approve the inquiry. Maybe they do! Maybe they still do after the redistricting decision! If that’s right, it’ll be one of the only votes the GOP has managed to pass in the entire year of their majority without Democratic votes. Quite literally, the only thing the GOP would have accomplished in a year would be to start an impeachment inquiry that virtually all sentient beings admit is based on no evidence of wrongdoing by Joe Biden.

But if Hunter Biden does anything but plead the Fifth (or testify), that impeachment vote will have been cast after Comer refused what he offered a few weeks ago: an offer for Hunter to testify publicly.

Similarly, a contempt vote — a second contentious vote for those five NY Congressmen and others in Biden districts — would be held after Comer refused what he has boisterously said was sufficient: public testimony. It’ll come from Jim Jordan, not exactly the model for principled use of contempt to enforce Congressional subpoenas. Even so, Trump will exert a great deal of pressure to pass a contempt vote, even on those five NY Congressmen facing an even tougher reelect battle. Let’s assume it passes! All that would make still more clear that this Congress only exists to serve the beck and call of Donald Trump, not Members’ constituents.

If the House held Hunter Biden in contempt, Merrick Garland’s DOJ would likely do what he always does: give it to a Special Counsel. And there’s already a Special Counsel prosecuting closely related issues. Doing anything but giving it to David Weiss would signal all sorts of confidence or legitimacy problems with his authority, even if they’re merited.

If David Weiss were to receive a contempt referral from the House, he’d be looking at what might be a clearcut case of contempt (particularly if Hunter simply doesn’t show up). Based on the Steve Bannon precedent, there’d be a great deal of pressure to charge Hunter Biden with contempt. But that would result in Weiss doing precisely what Hunter’s motion to dismiss accuses him of already: prosecuting him because Congress demanded he do so, prosecuting him to show up for an inquiry that has, over and over, made claims — mostly unsubstantiated — about crimes Hunter allegedly committed. As the motion to dismiss described it,

Many members of Congress, including the last Speaker of the House, Chairman of the House Oversight Committee, Chairman of the House Judiciary Committee, and the Chairman of the Ways & Means Committee are actively interfering with DOJ’s investigation, using their authority to pressure and malign DOJ, and using congressional committees limited to investigating government agencies to conduct a criminal investigation of private conduct by a private citizen— one they are conducting based on a publicly stated presumption of guilt.

On its face, contempt would be justified. Except Congress has not hidden their belief that they are pursuing — this deposition was meant to investigate — crimes they imagine Hunter Biden committed.

Venue would be in DC. And while blowing off a subpoena might be an easy question for a DC jury (it was in the Bannon and Peter Navarro cases), in his communications with Congress, Lowell has established that:

  • He offered to cooperate starting in February
  • He repeatedly raised false claims Congress had made about Hunter
  • Hunter offered to testify in public, which Comer offered then retracted

And that’s before you consider that the subpoena was issued prior to an impeachment resolution, but any contempt trial would happen after an impeachment resolution would have made it clear that this always was about impeachment.

I don’t know how this turns out today. But there’s a distinct possibility that it will result in demonstrating precisely what Abbe Lowell has laid out in one of his motions to dismiss. There’s a distinct possibility that the actions Comer and Jordan take today will provide yet more evidence Hunter will use to argue that the entire case must be dismissed.

I’m not saying it’ll work! I am laying out the dynamic exacerbated by a bunch of coincidences that even Abbe Lowell couldn’t have planned.

The August 13 Venmo Charge David Weiss Claimed Was an August 14 Charge

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My very first attempt to fact check one of the claims David Weiss made in the tax indictment of Hunter Biden the other day found what is almost certainly an error — and that’s before other reliability problems with the claims Weiss will face if this ever goes to trial.

But first, I probably owe Hunter Biden (and Katie Dodge, his long-suffering personal assistant during the period of his worst addiction) an apology.

In the indictment, Weiss included this eye-popping table that — he claims — captures Hunter’s spending in the years he charged.

There’s a conceptual problem with the table in any case. He’s showing the years for which he charged Hunter for — at a minimum — not paying his taxes. And while it’s true that if you’re self-employed you’re supposed to make estimated payments during the tax year, many many many people do not. Not paying usually only becomes a problem in the following year, when the taxes are due. Hunter’s alleged crimes occurred starting in 2017, not 2016.

So Weiss should show the income and expenses Hunter had in the following years — the years in which Hunter was legally obligated to pay the taxes. But if Weiss had shifted this table by one year, to show what Hunter was spending out-of-pocket in 2020, he would have had to reveal that in the year Hunter tried to clean up the wreck that he had made of his life in the past four years, he really didn’t have the income to pay those taxes. Weiss makes much of the fact that Kevin Morris paid for certain things in 2020 (probably including alimony and child support), some of that — possibly including the house in Venice where, in a recent podcast with Moby, Hunter describes he was hiding out from right wing mobs ginned up by Fox News — may not have been cash.

The reason I owe an apology, however, is that I assumed that the category, “Payments — Various Women,” meant those were sex workers.

To take this to trial, Hunter Biden has to be willing to let a paparazzi press spend valuable campaign reporting time on how a person can spend $383,548 on sex workers and $100,330 on adult entertainment in one year, 2018. It risks making the 2024 campaign precisely what Rudy Giuliani intended the 2020 one to be.

Then I started thinking about the way Hunter paid actual sex workers — often by Venmo or bank transfer and sometimes even by check — and I realized at least some of that would be captured in an even bigger number (which undoubtedly also reflects drug purchases) of ATM withdrawals: $772,548.

Then it occurred that that “payments — various women” may include to the four women Hunter paid from Owasco funds in 2018, including Dodge, Lunden Roberts, and these two people (who are not otherwise included in the table):

b. Person 2 is someone with whom the Defendant had a romantic relationship and who did no work, nor was she expected to do any work for Owasco, PC. The Defendant placed Person 2 on payroll in Spring 2018 in order to provide her with health insurance. In addition to health insurance, Person 2 received $11,000 in wages, which the Defendant falsely claimed as a business deduction reducing the income to him from Owasco, PC and his individual income taxes.

c. The Defendant placed Person 3 on payroll in spring 2018. Person 3 was a family member of Person 2’s. Person 3 received $11,000 in wages which the Defendant falsely claimed as a business deduction reducing the income to him from Owasco, PC and his individual income taxes. Prior to being placed on payroll, Person 3 had assisted the Defendant with personal errands and some light clerical work. After being placed on payroll, Person 3 did not perform any work-related services.

As I mentioned, Dodge worked her ass off in this period trying to keep Hunter afloat, including contacts with Burisma. I can imagine that an accountant would advise that treating her as payroll was perfectly acceptable. Yet if I’m right about how Weiss allocated this spending, he has insinuated by referring to this category by gender that Dodge, along with the others, was just a sex worker — exacerbating Joseph Ziegler’s labeling of Roberts as a prostitute in his House Ways and Means testimony.

Plus, if you had a personal assistant category, there should be one for the male Keith Ablow associate who in 2019 declared himself Hunter’s Chief of Staff, asked for income twice what Dodge was getting, and at least attempted to take over Hunter’s life, bank accounts, and rolodex. But he’s male and looking too closely at what he was doing when Hunter Biden’s digital life was packed up on a laptop that would eventually make its way to the FBI would raise a lot of questions and so … he doesn’t obviously appear here.

Then there are what Weiss has billed as ATM/Cash Withdrawals, that $772,548 figure. I’m virtually certain that’s wrong and also misnamed. It’s misnamed because we can see Hunter’s ATM withdrawals from Wells Fargo in publicly released data, and while there are days when he was obviously standing outside of an ATM making four $300 withdrawals in a row, that didn’t happen every day. It’s wrong because the credit card payments are almost certainly vastly higher than the curiously round $12,000. And it’s wrong or misnamed because a lot of that would be bank transfers and other kinds of payment, like Uber or Venmo.

Which brings me to the very first expense included in the indictment that I checked (there is at least one other to which I’ll return): a $1,500 Venmo payment to an exotic dancer, which Weiss described this way:

A $1,500 Venmo payment on August 14, 2018. That payment was to an exotic dancer, at a strip club. The Defendant described the payment in the Venmo transaction as for “artwork.” The exotic dancer had not sold him any artwork.

Per files available at BidenLaptopEmails dot com, here’s what that Venmo charge looks like:

Not only is there no way for someone who made this payment in the depths of his addiction to recognize, over a year later, that this woman is an exotic dancer, but Weiss got the date wrong. Venmo records the payment as being made on August 13, 2018 (though the payment may have cleared the next day).

Sure, getting a date wrong by one day in an indictment charging three felonies for making errors on paperwork is not that big of a problem — good enough for government work, they say.

Except it actually is a big deal that Weiss got that date wrong.

The reason I was immediately interested in that payment is because it occurred just days after the day, August 6, 2018, when someone or someones added two new remembered devices to Hunter’s Venmo account 12 minutes apart.

The thing is, it’s distinctly probable that at least one of the devices added to Hunter’s Venmo account was not added by Hunter. That’s because one of those newly added devices — an iPhone added at 15:26 — was located in Flintridge, CA, the foothills north of Pasadena. The other of those newly added devices — also an iPhone, the one added at 15:38 — was located near Las Vegas. According to Gus Dimitrelos’ report, Hunter hadn’t added a new iPhone to his Apple account for months — not since January 21, 2018.

Hunter was doing some crazy things at that point in his life, but getting from Los Angeles to Las Vegas in 12 minutes was probably beyond even the craziest driving; even commercial flights take over an hour.

This is precisely the phone metadata that, I noted, should have led law enforcement officers looking closely, as the IRS has been doing ever since 2018, to raise alarms about whether Joe Biden’s son, at a time when he was obviously hanging out with sex workers and drug dealers, was also having his digital life taken over.

The problem with indicting Hunter Biden for things that were paid through his devices is that — as the same book that Weiss uses to validate the fact that Hunter didn’t work at all in 2018 describes — often, after he engaged in a transaction with some other addict, his watch or jacket or iPad disappeared.

Somebody would eventually come over to my room to sell me something directly, or pass along a connection, for a finder’s fee. When we finished the transaction, the addict was usually out the door before I realized I was missing my watch or jacket or iPad—happened all the time.

“Happened all the time.”

If Hunter’s devices walked away “all the time,” then any payment made through them — certainly any payment made immediately after his Venmo account added two new remembered devices in two different cities 12 minutes apart — would have to be validated individually, to make sure someone else wasn’t making the payment, or at least to make sure Hunter didn’t think he was paying $500 for something but instead getting charged $3,000, which if he remembered it years later he would remember as something else.

“Happened all the time,” I can imagine.

But if you validate an individual Venmo payment adequately enough to be sure Hunter actually paid for it and entered the transaction category as “artwork” himself, then you’re going to get the date right.

And on this payment, in an indictment charging a three felonies for false filings to the Federal government, David Weiss didn’t get the date right.

Update: I have asked both David Weiss’ spox and Abbe Lowell whether they have clarity about the actual date of this payment. I have gotten no response from Lowell and Weiss’ spox has not yet gotten back to me with an answer.

Update: Weiss’ spox “decline[d] to comment beyond the indictment.”

All Points Bulletin to David Weiss! Tony Bobulinski Is a Missing Person!!

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Best as I can tell, Tony Bobulinski is not among the Hunter Biden business associates described in his tax indictment. Here’s the likely identity of those named:

  • Business Associate 1: Rob Walker
  • Business Associate 2: James Gilliar
  • Business Associate 3: James Biden
  • Business Associate 4: Eric Schwerin
  • Business Associate 5: Devon Archer

Bobulinski would naturally appear — arguably, should appear — in this narrative:

During the next two years the Defendant, Business Associate 1, and Business Associate 2 continued to meet with individuals associated with CEFC, including in February 2017, with CEFC’s then-Chairman (hereafter “the Chairman”).

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

11. After the State Energy HK payment, the Defendant, Business Associate 1, and Business Associate 2 began negotiating a joint venture with individuals associated with CEFC, which they called SinoHawk.

12. Over the summer of 2017, the Defendant cut out his SinoHawk business partners and separately negotiated a venture with individuals associated with CEFC called Hudson West III (“HWIII”). [my emphasis]

The entire passage is written to avoid mentioning a number of details that remain hotly contested. For example, the indictment doesn’t mention on what date in February 2017 the meeting in Miami with Chairman Ye occurred, which would determine whether or not it was even possible for Tony Bobulinski to attend, as Bobulisnki — in between meetings with Trump and Trump’s Chief of Staff — told the FBI he had, but which Abbe Lowell claims he did not.

The passage neglects to mention that Bobulinski worked with Walker, Gilliar, and Hunter to set up SinoHawk. It definitely doesn’t mention that the driving reason why Hunter “cut out his SinoHawk business partners,” which definitely included Bobulinski but which as written does not, was because Hunter thought Bobulinski was an asshole, both Hunter and Walker had concerns about Bobulinski’s Russian business ties, James Biden had concerns about his ties to pornography, and Walker, James Biden, and Hunter all thought he was a terrible fit for the group.

That said, note that ¶10 is wholly inconsistent with the “10 held by H for the big guy” conspiracy theories that Bobulisnki pushed to Republicans for years.

I await bulk corrections from virtually every Murdoch property.

David Weiss has simply disappeared Tony Bobulinski’s role in any of this.

Poof!

Weiss similarly made no mention of a diamond — or potentially two — another claim pushed by Bobulinski that the frothy right — and Congress, to the extent they’re distinguishable from the frothy right — has been chasing.

Whether or not the diamond had value is central to the topic of this indictment: what Hunter Biden earned and whether he paid taxes on those earnings. James Biden told investigators that the diamond was worthless, which may explain why the indictment doesn’t mention it. But if CEFC was handing Hunter one or more fake diamonds, it changes the nature of what was going on.

Admittedly, it may be easier for Weiss to prosecute the tax case by simply disappearing Tony Bobulinski from his allegations. Perhaps he’s trying to limit the discovery he has to provide to Hunter Biden. Perhaps he’s trying to avoid having to turn over the interview report that Joseph Ziegler already made public. But even in this passage of the indictment, Weiss is misrepresenting what the public evidence supports.

Or perhaps David Weiss’ disappearance of Tony Bobulinski is more than that.

The public record raises real questions about whether the past treatment of Bobulinski’s claims has tainted this investigation, a tax investigation.

In an affidavit accompanying the Bobulinski interview report he released, Ziegler explained that he was providing it because he didn’t get a chance to interview Bobulinski, yet another complaint from him about prosecutors’ likely attempts to avoid tainting the investigation that he now spins as political bias.

In investigative team meetings that occurred after this, I can recall that agents on the investigative team brought up on multiple occasions to the assigned prosecutors that they wanted to do an interview of Bobulinski with the assigned case agents. I can recall being told that they would think about it and then ultimately being told there was no need for the team to interview Bobulinski and that Bobulinski was not viewed as a credible witness.

Ziegler admitted that he had been told that Bobulinski was not credible.

In his statement to the House Ways and Means committee last week (basically a mulligan — an opportunity for him and Gary Shapley to clean up their past hearsay claims that have been entirely debunked by first-hand witnesses to the issues, in which both proceeded to repeat those debunked hearsay claims), Ziegler complained that the people who used the interview reports he released to discredit his hearsay claims are just a bunch of dummies. They simply don’t understand.

The evidence I turned over to the committee was not cherrypicked and again, further supports my claims I brought forward to the committee. There have been critics on the committee who have tried to impeach some of the interview memos turned over and it is apparent that they do not understand how interviews in criminal investigations occur. [my emphasis]

In an attempt to deflect blame for his release of this interview report, he confessed that the Tony Bobulinski interview is not, as HWAM has billed it, an FD-302, a finished interview report.

I would point the members of the committee to Affidavit 4, Exhibit 400A (PowerPoint). I think that some of the members missed the point regarding this memorandum from the FBI intake of information provided by Anthony Bobulinski. You’ll notice that this is not an FBI 302 but is just a written document drafted by the Washington DC FBI agents from this interaction. The interview was not recorded and Bobulinski was voluntarily providing information to the FBI Agents. Since Bobulinski is providing the information in the presence of FBI Special Agents, he would still be criminally liable under Title 18 USC Section 1001 if he were to make any false statements. The Hunter Biden investigative team, including myself, had asked the assigned prosecutors to conduct an interview of Bobulinski but we were denied that request, and were never able to interview him. Interviewing Bobulinski would be normal process and procedure as a part of a criminal investigation for the team to corroborate evidence obtained in the investigation, elaborate on investigative leads, challenge some of the allegations made, and ask pertinent questions regarding the investigation. Again, this was not done! [my emphasis]

His complaint that HWAM has labeled it as a 302 is their fault.

Complain about the dumb Republicans for this error, Joe! While you’re complaining, Joe, you should similarly complain that James Comer invited Bobulinski for a voluntary, not compelled, interview, making it far easier for Bobulinski to dodge questions about what Mark Meadows handed him at a clandestine meeting in November 2020.

But not all of us are dummies, Joe. I noted that it wasn’t a 302 here.

The Bobulinski interview report Ziegler released, however, has not been entered in the official 302 form and by title is just a revision of his interview, with the author marked as one of the agents in the original interview; it appears to have been saved from Microsoft Word.

The fact that it’s not a 302 raises questions about Ziegler’s conduct in sharing it. Why would Ziegler share it if it were never approved? Why did he share it even though he has access to at least some of the communications that Lowell released which suggest Bobulinski couldn’t be telling the truth? If investigators were told Bobulinski wasn’t credible, why do they continue to float the “10 to H for the big guy” claims? Why did Shapley make Lesley Wolf’s prohibition — some weeks after the Bobulinski interview — on asking about the “big guy” reference central to his purported whistleblower complaint?

The Bobulinski claims are part of the Ziegler and Shapley media tour that — Abbe Lowell claims — generated political pressure with the result that David Weiss reneged on a plea deal and instead charged his client with nine tax charges (and three gun charges).

How did Ziegler get this report if it hasn’t been finalized into the FBI system? Ziegler describes only that it “was provided to the RHB investigation team by agents with the FBI.”

This was a memo and attachment that was provided to the RHB investigative team by agents with the FBI regarding information that was provided to agents with the FBI Washington Field Office from Anthony Bobulinski.

In his House Judiciary Committee, Tim Thibault described following up with the agent who did the interview, “to make sure that Baltimore got the FD-302s … that the agents had written and to also make sure that anything he had turned over to the agents got there.”

I guess Thibault, who spent 26 years in the FBI, is a big dummy too, because he called it a 302, too (and suggested it did get entered into the eGuardian system).

But Ziegler is an IRS agent, not the FBI agents that Thibault tried to make sure received the interview report.

And Ziegler has confessed to have obtained the report — finalized 302 or not — of the interview that Tony Bobulinski gave the day after spending time with Donald Trump, weeks before (by Cassidy Hutchinson’s telling) being handed something at a secret meeting with Mark Meadows.

The IRS obtained questionable witness testimony from a guy represented by a Trump-associated lawyer, volunteered immediately after spending time with Trump. That gets closer and closer to the President making a request that the IRS conduct an investigation into Hunter Biden and his father, a violation of 26 USC 7217, which makes it a crime for the President, by name, to ask the IRS to target someone specifically.

It shall be unlawful for any applicable person to request, directly or indirectly, any officer or employee of the Internal Revenue Service to conduct or terminate an audit or other investigation of any particular taxpayer with respect to the tax liability of such taxpayer.

[snip]

(e)Applicable person

For purposes of this section, the term “applicable person” means—

(1)the President, the Vice President, any employee of the executive office of the President, and any employee of the executive office of the Vice President; [my emphasis]

And now, three years after Bobulinski went to the FBI and — between meetings with Trump and his Chief of Staff — told them things that may not have been true, David Weiss has charged Hunter with tax crimes in an indictment that mentions the failed joint venture, SinoHawk, of which Bobulinski was a part.

Yet he didn’t mention Bobulinski’s role in it.

David Weiss appears to have hidden the role that Tony Bobulinski plays in these events, going so far as to insinuate that Hunter cut the SinoHawk partners out because of greed rather than justified distrust of Bobulinski. And in so doing, Weiss has hidden the taint — Donald Trump’s taint — that Bobulinski’s testimony may have had on the IRS investigation.

How David Weiss May Plan to Prove His Case against Hunter Biden

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To understand the new indictment against Hunter Biden, consider that the maximum penalty for all nine charges in Los Angeles, covering four years, is eight years less (17 total) than the maximum penalty for the three charges tied to 11 days of conduct in Delaware (25 years).

The charges, and penalties, look like this:

  1. Failure to pay 2016 (1)
  2. Failure to pay 2017 (1)
  3. Failure to file 2017 (1)
  4. Failure to pay 2018 (1)
  5. Failure to file 2018 (1)
  6. Tax evasion 2018 (5)
  7. False return 2018 (3)
  8. False return 2018 (3)
  9. Failure to pay 2019 (1)

The LA indictment isn’t really about four years of conduct. It’s about the tax forms filed — ultimately in 2020 — for one year: 2018, the year of Hunter’s most desperate addiction (and also, as it happens, the year when this investigation began and a year when a bunch of people, including the then-President, his personal attorney, and some Russian spies — started targeting Hunter as a political ploy).

All the other charges are misdemeanor charges that would never be filed — especially not with someone who ultimately did pay the taxes — absent the felony charges tied to 2018.

But I suspect Weiss chose to include those charges — including for 2016, a year that not even the disgruntled IRS agents were always sure should be charged — to make the package as a whole sustainable.

The 2018 allegations

The 2018 allegations aren’t controversial (indeed, they are the ones that Joseph Ziegler has been detailing over and over).

Basically, Weiss is charging Hunter Biden for lying in 2020 to limit the taxes he had to pay on his still-substantial 2018 income that he blew on sex workers and cocaine.

Weiss alleges that when Hunter went over his finances with what happened to be a new tax accountant in 2019 and 2020, he told the accountant that payments to four women — one of whom is the mother of his fourth child, Lunden Roberts — and a bunch of travel expenses and payments to his kids were instead business expenses.

Here are some of the expenses that Weiss’ prosecutors will show — in the middle of a Presidential campaign — that Hunter wrote off as business expenses:

a. Claiming false “Travel, Transportation and Other” deductions including, but not limited to, luxury vehicle rentals, house rentals for his then-girlfriend, hotel expenses, and New York City apartment rent for his daughter;

b. Claiming false “Office and Miscellaneous” deductions, including, but not limited to, the purchase of luxury clothing, payments to escorts and dancers, and payments for his daughter’s college advising services;

c. Claiming false “Legal Professional and Consulting” deductions, including, but not limited to, payment of his daughter’s law school tuition and his personal life insurance policy;

d. Claiming false deductions for payments from Owasco, PC’s account to pay off the business line of credit, specifically by allocating 80 percent to “Travel Transportation and Other” and 20 percent to “Meals,” when in truth and in fact most of the business line of credit expenses were personal, including to a website providing pornographic content, payments at a strip club, and additional rent payments for his daughter; and

e. Claiming false deductions for payments from Owasco, PC’s account to JP Morgan Chase, specifically that these were for “consulting,” when in truth and in fact, these transfers included payments to various women who were either romantically involved with or otherwise performing personal services for the Defendant, including a $10,000 payment for his membership in a sex club.

To prove that Hunter deliberately lied on his 2018 tax returns, Weiss will have to prove that in a series of meetings with his accountant in 2020, Hunter affirmatively chose not to highlight certain expenses as personal expenses — including that $10,000 payment for membership in a sex club.

117. On January 28, 2020, the Defendant met with the CA Accountants in person at their office for more than three hours. During this meeting the Defendant reviewed the General Ledger and various schedules for Owasco, PC including a purported “Office Expense” schedule and a purported “Professional and Outside Service” schedule to confirm their accuracy.

[snip]

120. While he reviewed the schedules for “Office Expenses” and “Professional and Outside Services,” the Defendant affirmatively identified, with a yellow highlighter, personal expenses that should not be deducted as business expenses.

121. While the Defendant identified personal expenses on the “Office Expense” Schedule, including ones as small as a $15 payment to a tattoo parlor and a $35.56 payment to a bookstore, he did not identify the following personal expenses:

a. A $1,500 Venmo payment on August 14, 2018. That payment was to an exotic dancer, at a strip club. The Defendant described the payment in the Venmo transaction as for “artwork.” The exotic dancer had not sold him any artwork.

Weiss will have to prove that Hunter reviewed those expenses, remembered what they were, and nevertheless did not highlight them as personal expenses.

Weiss will be helped (as he will in the Delaware case), enormously, by Hunter’s decision to write all this up.

And the Defendant specifically described his stays in various luxury hotels in California and private rentals, and expenses related to them, in this way:

I stayed in one place until I tired of it, or until it tired of me, and then moved on, my merry band of crooks, creeps, and outcasts soon to follow. Availability drove some of the moves; impulsiveness drove others. A sample itinerary: I left the Chateau [Marmont] the first time for an Airbnb in Malibu. When I couldn’t reserve it for longer than a week, I returned to West Hollywood and the Jeremy hotel. There were then stays at the Sunset Tower, Sixty Beverly Hills, and the Hollywood Roosevelt. Then another Airbnb in Malibu and an Airbnb in the Hollywood Hills. Then back to the Chateau. Then the NoMad downtown, the Standard on Sunset. A return to the Sixty, a return to Malibu . . . An ant trail of dealers and their sidekicks rolled in and out, day and night. They pulled up in late-series Mercedes-Benzes, decked out in oversized Raiders or Lakers jerseys and flashing fake Rolexes. Their stripper girlfriends invited their girlfriends, who invited their boyfriends. They’d drink up the entire minibar, call room service for filet mignon and a bottle of Dom Pérignon. One of the women even ordered an additional filet for her purse-sized dog.

Notably, the Defendant did not write that he conducted any business in any of these luxury hotels nor did he describe any of the individuals who visited him there as doing so for any business purpose.

But Weiss will also have to prosecute this case in a way that is consistent with his prior decision to offer Hunter a plea agreement, which doesn’t also substantiate the disgruntled IRS agents’ claims of bias. Weiss has to be prepared to a tell a story that is consistent with his prior decision to offer a plea agreement here.

The challenges

To understand that tension, it helps to think about why Weiss may not have charged Hunter with felonies in the first place.

There’s no reason to believe it was bias. Indeed, the media and dick pic sniffing tour created by Ziegler and Jim Jordan have revealed that DOJ Tax attorneys weren’t entirely thrilled with the charges. And there’s good reason to believe that career prosecutors in Los Angeles advised US Attorney Martin Estrada it was a weak case; since Jordan insisted on Estrada providing testimony to HJC, Hunter might even succeed at obtaining the three memos that prosecutors provided to Estrada in advance of his decision not to join the case.

Career attorneys didn’t think it would be a sure thing to prosecute this case.

There are at least five things that make it hard.

First, as noted, Hunter was working with a new accountant starting in 2019. His prior accountant died in June 2019, within weeks of Hunter getting sober, and he didn’t get a new accountant for five months.

The Defendant used the services of D.C. Accountant from January 1, 2017, until D.C. Accountant’s death in or about June 2019. In November 2019, the Defendant engaged the services of an accounting firm in Los Angeles, California (hereafter the “CA Accountants”).

To make that process more difficult, Hunter didn’t have solid records for 2018, and so his accountants had to reconstruct things from bank and credit card receipts.

While D.C. Accountant had already created financial and accounting records in connection with the 2017 tax returns, no similar records existed for 2018. Therefore, the CA Accountants used available bank and credit card statements to create various schedules, including schedules for different categories of expenses, and a general ledger for Owasco, PC.

The indictment makes much of the fact that Hunter didn’t share the book with the accountants, but that’s not a crime (or that unusual).

Then, most obviously, there’s the addiction. Weiss will have to prove that when Hunter did not exclude personal expenses as personal expenses, he had an affirmative knowledge of what particular expenses were. In some ways, Hunter’s book helps him here — in it, he describes that everything was a blur.

Plus, everyone involved believed that a jury would be sympathetic to a recovering junkie who fucked up his taxes in the first full year he was sober. While prosecutors are likely to be able to exclude some of the evidence that this entire investigation was a political hit job, Hunter’s attorneys will surely be able to play to the sympathies of Democratic jurors for Hunter’s father.

And whereas in some venues, the sheer extravagance of Hunter’s expenses — the decision to blow $1,727 in April 2018 on a Lamborghini until his Porsche was shipped out — might turn off jurors, this is LA. At least some jurors might not find such extravagances offensive in the way that they would in other areas.

You only need one.

And all that’s before you consider the general difficulties of this case. Ziegler testified that when he opened this case, he had nothing but payments to sex workers and public divorce complaints. What he used to get beyond that was a claim that Hunter deliberately hid his Burisma income in 2014 — a claim not backed by this indictment (which says that the money instead went into the joint business Hunter had with Devon Archer). Ziegler’s supervisor documented improper political influence at least from the then-President, and likely others. As I have described, it’s not clear whether Delaware ratcheted up this investigation before Ukrainians pitched what was a likely influence operation. And for the entirety of 2019, Trump partisans — including one who accepted something that might be an envelope from the then-President — kept attempting to tamper in this investigation. One thing Abbe Lowell has been assiduously doing is documenting the people who may have committed crimes in an effort to ensure his client would be prosecuted — people like Tony Bobulinski and Rudy Giuliani. Even ignoring the October 2022 leak to the WaPo (which I don’t think can directly be attributed to Shapley or Ziegler), Lowell does have a real claim that Zielger and Gary Shapley shared grand jury information in an effort to force Weiss to charge this. As Lowell described in his subpoena request, if he can prove that Trump spoke to anyone in the IRS about this case, Trump, too, would be among those who committed a crime, 26 USC 7217, in an effort to see his client charged.

Lowell has a real case that DOJ chose to ignore the crimes of up to seven people, including Donald Trump, to pursue this prosecution against his client.

Some of the witnesses against Hunter will be his old business partners — though those same people will attest to how debilitating his addiction was. A critical witness will be James Biden, the President’s brother. Others, however, will be people who can easily be impeached as political partisans or disgruntled ex-wives. At this point, Lowell might even be able to call Ziegler to discredit the case Ziegler built.

All those difficulties explain why David Weiss might have decided in May 2023 that it would be a just resolution to get Hunter to plead guilty to misdemeanor charges covering just 2017 and 2018, along with a diversion agreement for the gun charge.

The reneged plea deal

David Weiss reportedly decided in May 2023 that it would be a just resolution to plead this out. By June 20, though, when he surprised Chris Clark by stating the investigation was ongoing, he may have changed his mind.

Particularly given the six misdemeanor charges for which no one else would be charged and the like comparators of Roger Stone, this indictment will face the same challenges that the Delaware one will: selective prosecution at least for those misdemeanor charges and vindictive prosecution for the decision to charge an indictment holding a 17-year criminal exposure months after claiming to offer a misdemeanor plea. As I’ve described, selective and vindictive prosecution claims are virtually impossible to show, but this case also includes unprecedented aspects that might make this case different.

While malicious prosecution claims are normally just as impossible as selective and vindictive ones, Shapley and Ziegler have given Lowell abundant basis to at least try to make that claim, particularly given that Weiss didn’t allege the criminal wrong doing in 2014 that Shapley and Ziegler have made their white whale.

Finally, there is the claim (possibly to be made as part of a vindictive prosecution claim) that Weiss reneged on a plea deal, by offering a resolution to all charges but then claiming the investigation was ongoing.

Jordan’s efforts help again, here — not just because his efforts do provide a plausible claim of political pressure, but because of the testimony he has demanded.

When describing the threats that he and members of his team started experiencing around the time that — Lowell has claimed — he reneged on a plea deal, David Weiss used the word “intimidate.”

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

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

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

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

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

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

As Lowell noted in his subpoena request, the former President — who Judge Engoron and Jack Smith’s prosecutors have both shown deliberately incites his followers to generate threats against his adversaries — has made at least four such posts in the period when Weiss was deliberating over what to do.

D. Trump Truth Social posts on June 20, 2023:

  • “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. . . .”

D. Trump Truth Social post on July 11, 2023: “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. Because of the two Democrat Senators in Delaware, they got to choose and/or approve him. Maybe the judge presiding will have the courage and intellect to break up this cesspool of crime. The collusion and corruption is beyond description. TWO TIERS OF JUSTICE!”

David Weiss wasn’t going to charge Hunter with a felony on the tax charges. Then Donald Trump got involved, and Weiss and his team started getting intimidating messages, and he decided he would.

That’s a pretty compelling — and unprecedented — due process claim.

Hunter’s former attorneys

One way Weiss tries to prove his case otherwise is his inclusion of 2019 — one of the misdemeanor charges — in the indictment.

After he got sober, the indictment alleges, Hunter still didn’t pay his taxes.

As the charge tied to 2019 describes, Hunter filed taxes in October 2020, but didn’t pay them off, presumably until 2021, when Kevin Morris paid off his remaining tax debt.

D. The Defendant owed taxes for 2019, which he chose not to pay.

156. The Defendant filed a 2019 From 1040 on October 15, 2020, and self-reported that he earned total gross income of $1,045,850 and taxable income of $843,577 and self-assessed that he owed $197,372 for the 2019 tax year.

157. The Defendant did not pay any of his outstanding tax debt when he filed his return.

E. The Defendant had the funds available to pay his taxes.

158. In 2020, prior to when the Defendant filed the 2019 Form 1040, the Defendant’s agent received multiple payments from the publisher of his memoir and then transferred the following amounts to the Defendant’s wife’s account in the amounts and on the dates that follow:

a. $93,750 on January 21, 2020; and

b. $46,875 on May 26, 2020.

F. Rather than pay his taxes, the Defendant spent millions of dollars on an extravagant lifestyle.

159. From January through October 15, 2020, the Defendant spent more than $600,000 on personal expenses rather than pay any of the $197,372 he owed for tax year 2019.

This is, in my opinion, a necessary but also the weakest part of the indictment. The table Weiss includes showing where Hunter blew his money shows his expenses dropped already in 2019 (during just half of which year he was sober), and it doesn’t include 2020 at all.

Instead, Weiss includes this paragraph, showing that Kevin Morris paid for Hunter’s rent and his car, which happened to be a Porsche.

17. From January through October 15, 2020, an entertainment lawyer (hereafter “Personal Friend”) provided the Defendant with substantial financial support including approximately $200,000 to rent a lavish house on a canal in Venice, California; $11,000 in payments for his Porsche; and other individual items. In total, the Defendant had Personal Friend pay over $1.2 million to third parties for the Defendant’s benefit from January through October 15, 2020.

[snip]

Notably, in 2020, well after he had regained his sobriety, and when he finally filed his outstanding 2016, 2017, and 2018 Forms 1040, the Defendant did not direct any payments toward his tax liabilities for each of those years. At the same time, the Defendant spent large sums to maintain his lifestyle from January through October 15, 2020. In that period, he received financial support from Personal Friend totaling approximately $1.2 million. The financial support included hundreds of thousands of dollars in payments for, among other things, housing, media relations, accountants, lawyers, and his Porsche. For example, the Defendant spent $17,500 each month, totaling approximately $200,000 from January through October 15, 2020, on a lavish house on a canal in Venice Beach, California.

Much of those third party expenditures, I imagine, went to Hunter’s ex wife and to child support for his fourth child. Particularly given that Morris did pay off the taxes, this is a complaint that that happened in 2021 and not 2020.

So a great deal of Weiss’ case depends on convincing jurors that that $17,500 lavish house on the canal is corrupt. Why didn’t the President’s son sell the Porsche and buy a Honda, prosecutors will ask, so he could at least start paying off his taxes due?

Undoubtedly, Weiss is banking on such claims being politically impossible during a Presidential election. To take this to trial, Hunter Biden has to be willing to let a paparazzi press spend valuable campaign reporting time on how a person can spend $383,548 on sex workers and $100,330 on adult entertainment in one year, 2018. It risks making the 2024 campaign precisely what Rudy Giuliani intended the 2020 one to be.

But there’s one other thing that, I think, Weiss plans to use to ensure he can bring this case.

Thus far, the indictment only alleges that Hunter lied to the accountant who did his 2018 taxes. But depending on what Lowell does over the weekend, it may make it easier for Weiss to claim that Hunter lied, in 2022, to his attorneys.

In June 2022, one of Hunter’s attorneys wrote Mark Daly — a DOJ tax prosecutor — and described that if he were to testify, Hunter would claim to have engaged in five different kinds of business in 2018. Two of those paragraphs are redacted in the version Joseph Ziegler released. Ziegler has suggested that one includes a woman with whom he was sleeping (who is undoubtedly one of the four women described as have been on Owasco’s payroll in 2018). Another includes a guy who may have been his dealer.

The third unredacted paragraph describes residual meetings involving Hudson West — meetings in which his uncle James Biden was involved.

Throughout the beginning of 2018, Mr. Biden recalls working extensively on ventures related to Hudson West III, including on a potential investment in a project at Monkey Island.  Meetings and interactions related to Hudson West III took place with, among others, James Biden, Jiaqi Bao, Mervyn Yan, and Gongwen (Kevin) Dong, including (via teleconference) in March 2018.  Mr. Biden also evaluated several business ventures with Mr. Schwerin and James Biden throughout 2018.  These efforts involved several in‐person meetings with James Biden, including we understand in Washington, D.C., Philadelphia, and New York.  We understand that ventures that were evaluated by Mr. Biden in the context of these meetings included one venture to expand an insurance business into Los Angeles, and another related to development of treatment centers on the west coast for substance abuse programs.

In his September 2022 interview — and, I have no doubt, in the President’s brother’s recent grand jury appearance — James Biden said he wasn’t involved in any business deals with Hunter in 2018.

James B stated that he recalled not being involved with anything beyond 2017. James B stated that he wanted a “soft landing” for RHB.

I think it exceedingly likely that Weiss will threaten to argue (if he hasn’t already gotten crime-fraud excepted testimony), that Hunter lied to his attorneys in 2022 about his ongoing business efforts in 2018. Obtaining a crime-fraud exception (from the Chief Judge in Los Angeles, probably) would have required fewer, if any, approvals as Special Counsel.

Abbe Lowell has been promising for months that he plans to argue that David Weiss reneged on a diversion agreement and plea in the summer — at a time, Weiss has since testified, he and his team were getting “intimidat[ing]” messages. But central to that plan has always been getting Chris Clark to testify about what Weiss and Lesley Wolf promised in May 2023.

Weiss may have already gotten testimony from Hunter’s former lawyers. Or, Weiss may imagine that the attorney-client waiver required to get Clark’s testimony about how he reneged on the plea deal will make it easier — if not provide a venue — to ask Clark about what Hunter said that led Clark to offer that proffer last summer.

But Lowell’s vindictive prosecution claim is due on Monday. Weiss indicted this case on the last grand jury day possible before that vindictive prosecution claim (not to mention any legal action in advance of Hunter’s compelled testimony before Congress on Wednesday).

To rebut a vindictive prosecution claim, David Weiss will need proof about what changed. And one thing that may have changed, with the grant of Special Counsel status, is to make it easier to obtain a crime-fraud exception for Hunter’s former attorneys.

Nine Tax Chages Filed against Hunter Biden in Los Angeles

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CNN first reported on the expected development.

The judge in the case is Mark Scarsi, a Trump appointee, but apparently one of the real judges the former President appointed.

Here’s the indictment.

Here’s the expenses they lay out.

The charges are:

  1. Failure to pay 2016
  2. Failure to pay 2017
  3. Failure to file 2017
  4. Failure to pay 2018
  5. Failure to file 2018
  6. Tax evasion 2018
  7. False return 2018
  8. False return 2018
  9. Failure to pay 2019

The three bolded charges for 2018 are the ones with big penalties.

Effectively what they did is build a bunch of lesser charges around the 2018 charges, during the worst of his addiction, for which the accounting was dicey.