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58A-PG-3250958: Curiosities about the Alexander Smirnov Case
I wanted to flag two details of the Alexander Smirnov case — the FBI informant arrested upon arriving in Las Vegas last week on charges he made up a false claim that Mykola Zlochevsky had bribed Joe Biden.
First, the indictment repeatedly includes the assessment case number.
As part of that process, FBI Pittsburgh opened an assessment, 58A-PG-3250958, and in the course of that assessment identified the 2017 1023 in FBI holdings and shared it with USAO WDPA. USAO WDPA then asked FBI Pittsburgh to reach out to the Handler to ask for any further information about the reference in his 2017 1023 that stated, “During this call, there was a brief, non-relevant discussion about former [Public Official 1]’s son, [Businessperson 1], who is currently on the Board of Directors for Burisma Holdings [No Further Information]”.
[snip]
By August 2020, FBI Pittsburgh concluded that all reasonable steps had been completed regarding the Defendant’s allegations and that their assessment, 58A-PG-3250958, should be closed. On August 12, 2020, FBI Pittsburgh was informed that the then-FBI Deputy Director and then-Principal Associate Deputy Attorney General of the United States concurred that it should be closed. [my emphasis]
In my experience, it is exceedingly unusual to include case file numbers in public documents. One big exception to that rule — the Crossfire Hurricane-related case filings — is instructive: Trump had those case numbers released as part of his effort to burn the investigation.
This case number — 58A — marks this as a bribery assessment.
That makes Bill Barr’s project sketchier than it already was. Here’s how Chuck Grassley described the genesis of this lead:
Although investigative activity was scuttled by the FBI in 2020, the origins of additional activity relate back to years earlier. For example, in December 2019, the FBI Washington Field Office closed a “205B” Kleptocracy case, 205B-[redacted] Serial 7, into Mykola Zlochevsky, owner of Burisma, which was opened in January 2016 by a Foreign Corrupt Practices Act FBI squad based out of the FBI’s Washington Field Office. This Foreign Corrupt Practices Act squad included agents from FBI HQ. In February 2020, a meeting took place at the FBI Pittsburgh Field Office with FBI HQ elements. That meeting involved discussion about investigative matters relating to the Hunter Biden investigation and related inquiries, which most likely would’ve included the case against Zlochevsky. Then, in March 2020 and at the request of the Justice Department, a “Guardian” Assessment was opened out of the Pittsburgh Field Office to analyze information provided by Rudy Giuliani.
So during Trump’s impeachment for extorting a bribery investigation, Bill Barr’s DOJ shut down a kleptocracy investigation of Mykola Zlochevsky, then, weeks later, opened up a back channel for Rudy Giuliani that led to an assessment of whether Mykola Zlochevsky had bribed Joe Biden.
Close a corruption investigation into Zlochevsky, then open a corruption investigation into an make-believe bribe Zlochevsky made to Joe Biden.
Somehow Scott Brady’s team found a passing notice about Hunter Biden in a 2017 informant report from Smirnov — he offered conflicting explanations of how he found this FD-1023 in his House Judiciary Committee interview — which led to the interview where Pittsburgh’s FBI allowed Smirnov to make allegations about Zlochevsky claiming to have bribed Biden that should have easily been debunked.
And then, after the assessment had been shut down, days after Trump yelled at Bill Barr about the Hunter Biden investigation, David Weiss’ team was ordered, by Richard Donoghue (who had concurred in closing the assessment), to accept a briefing on it. Barr’s story and the indictment conflict about whether Weiss should have investigated in 2020, which would have led him to discover these lies then, or was only asked to investigate further after Republicans (and Bill Barr!) had made a stink about the informant report again.
Meanwhile, it seems to have escaped notice that Weiss’ team is seeking to detain Smirnov pretrial.
It is almost unheard of to seek detention for a false statements case. Even assuming Weiss argues that Smirnov is a flight risk, people usually aren’t detained on such charges.
So detention may be more about the other claims Smirnov made to investigators last September: That he had (faked) recordings of Hunter Biden from a hotel in Kyiv, and that he had been working with some Russians since May 2023 to end the Ukraine war, a plan that had some tie to the 2024 election.
51. The Defendant also shared a new story with investigators. He wanted them to look into whether Businessperson 1 was recorded in a hotel in Kiev called the Premier Palace. The Defendant told investigators that the entire Premier Palace Hotel is “wired” and under the control of the Russians. The Defendant claimed that Businessperson 1 went to the hotel many times and that he had seen video footage of Businessperson 1 entering the Premier Palace Hotel.
52. The Defendant suggested that investigators check to see if Businessperson 1 made telephone calls from the Premier Palace Hotel since those calls would have been recorded by the Russians. The Defendant claimed to have obtained this information a month earlier by calling a high-level official in a foreign country. The Defendant also claimed to have learned this information from four different Russian officials.
53. The Defendant told investigators that the four different Russian officials are all top officials and two are the heads of the entities they represent. These Russians said that conversations with Ukrainians about ending the war will include the next U.S. election. The Defendant told investigators he is involved in negotiations over ending the war and had been for the previous four months. According to the Defendant, the Russians want Ukraine to assist in influencing the U.S. election, and the Defendant thinks the tapes of Businessperson 1 at the Premier Palace Hotel is all they have. The Defendant told investigators he wants them to ask Businessperson 1 how many times he visited and what he did while at the Premier Palace Hotel. [my emphasis]
That is, seemingly of the belief that the FBI would be amenable to this plan, Smirnov claimed to be involved in an information operation for the third straight election.
Remember, the indictment ties Smirnov to the Andri Derkach influence operation in 2020 by tying the genesis of Smirnov’s 2020 bribery claims to this article, reporting on probably fabricated tapes between Joe Biden and Petro Poroshenko.
A Ukrainian lawmaker who met with Rudolph W. Giuliani late last year released recordings of private phone calls several years ago between Vice President Joe Biden and Petro Poroshenko, then Ukraine’s president, in a new broadside against the presumptive Democratic nominee for U.S. president that has raised questions about foreign interference in the 2020 election.
The recordings played at the news conference Tuesday shed relatively little new light on Biden’s actions in Ukraine, which were at the center of President Trump’s impeachment last year. They show that Biden, as he has previously said publicly, linked loan guarantees for Ukraine to the ouster of the country’s prosecutor general in 2015. But Derkach used the new clips to make an array of accusations not proven by the tapes.
Smirnov even claimed to have met with Poroshenko and Viktor Shokin in 2016.
One of the two AUSAs on this case, Sean Mulryne, is a Public Integrity prosecutor who has worked FARA cases (including that of Elliott Broidy-related Nickie Lum Davis, who was represented by Abbe Lowell).
There may be — likely is! — more to this case than a simple false statement. But that’s another reason why David Weiss has no business overseeing a case in which he is a direct witness.
Tony Bobulinski Says Trump’s Impeachment Radicalized Him
I wrote two short threads on the Tony Bobulinski transcript released this week (one, two).
As with all things involving James Comer’s Oversight Committee, it quickly disintegrated into farce.
The story Bobulinski told was that — as a former Q Clearance holder (he raised the Q Clearance he held years ago over a dozen times) — he wanted nothing to do with CEFC, because, “lying, cheating, and stealing is sort of an acceptable practice … in China.” But then, in 2017, he mysteriously put aside his concerns about all that to try to get in on that business deal. Then, when Hunter Biden grew to clash with Bobulinski shortly after Bobulinski got involved in efforts to do business with CEFC in 2017, Bobulinski got furious at not being able to deal with CEFC.
It took some time to lay out what Bobulinski was up to.
First, Dan Goldman elicited Bobulinski to express how furious he was at being cut out of the business.
Mr. Bobulinski. SinoHawk did not receive the $10 million because —
Mr. Goldman. Thank you.
Mr. Passantino. Hold on. Hold on. He can finish.
Mr. Bobulinski. Hunter and Jim defrauded me at the end of July — not just me, but the other members of Oneida Holdings. You’re a litigator, former prosecutor at the SDNY. You’ve seen the fully executed SinoHawk documents, the fully executed Oneida, LLC documents. You’re a wealthy man. You’re very familiar with LLCs.
They had a fiduciary duty to not circumvent, lie, or embezzle funds. And at the end of July 2017, that’s well-documented, Hunter Biden invokes his father to basically shake down and extort the Chinese to not send the money to SinoHawk Holdings and send it directly to a new entity that he worked overtime to form so he could put the money in his own pocket and Jim Biden’s pocket.
Mr. Goldman. That clearly upsets you.
Mr. Bobulinski. Have you ever been defrauded in your life?
Mr. Goldman. No. I’m just —
Mr. Bobulinski. Have you ever been defrauded?
Mr. Goldman. I’d like the record to reflect that Mr. Bobulinski was —
Mr. Bobulinski. You want to answer the question?
Mr. Goldman. No. I ask the questions, you answer the questions. You’re the witness.
And I would like the record to reflect that Mr. Bobulinski raised his voice as he was explaining that the —
Mr. Bobulinski. I clearly — hold on. Hold on. For the record — hold on, Mr. Goldman.
For the record, I was defrauded at the end of July 2017 by the Biden family. And as would anybody be, I was disappointed, frustrated, and angry that I was defrauded as a businessman that worked extremely hard to put this business together.
Mr. Goldman. And you’re still angry, right? You’re still angry, aren’t you?
Mr. Bobulinski. I’m angry that the American people have been lied to for four years about the facts of Joe Biden —
Mr. Goldman. You’re not angry about being defrauded?
Mr. Bobulinski. No. I’m a wealthy individual.
The money that Joe — the Bidens — took from me is less than $2 million at the time. I would donate that to whatever charity you would ask me to donate that to, Mr. Goldman.
Mr. Goldman. So you’re over it now?
Mr. Bobulinski. I’m over which aspect of it?
Mr. Goldman. You’re over being what you claim to be defrauded?
Mr. Bobulinski. I am angry that the American people continue to be lied about — lied to about Joe Biden and the Bidens’ involvement in —
Mr. Goldman. I appreciate that. It’s not your own financial interest. I get it.
You’re just here having nothing to do with that.
I’ll turn it back over to counsel.
From there, staffers tried to get Bobulinski to admit that the business deal he signed was with only Hunter and Jim, not Joe. Bobulinski, as he did over and over when the facts didn’t match his claims, accused people of lying. So Goldman and the staffers riffed about all the people Bobulinski had accused of lying.
Mr. [redacted]. The Biden family — the Biden family — exhibit 6, your partners are — called Bidens — are James Biden and Hunter Biden, right?
Mr. Bobulinski. Why did I meet with Joe Biden? You are obfuscating the facts of what transpired by talking —
Mr. Goldman. Sir, he’s asking you a simple question.
Mr. Bobulinski. It isn’t a simple question, Congressman Goldman.
Mr. Goldman. It’s not a simple question?
Mr. Bobulinski. No, it’s not a simple question.
Mr. Goldman. Who are the partners from the LLC?
Mr. Bobulinski. You continue to lie and obfuscate the facts to the American people. That’s why my voice is raised —
Mr. Goldman. Good. So now we’re back —
Mr. Bobulinski. — because he’s about to do it.
Mr. Goldman. So the FBI, The Wall Street Journal, Cassidy Hutchinson, all of us — there was another one. Who else lied? Yeah, the FBI agents. We’ve got that.
Mr. [redacted]. Rob Walker.
Mr. Goldman. Rob Walker.
Mr. [redacted]. James Gilliar.
Mr. Goldman. James Gilliar.
Mr. Passantino. Are there questions here pending?
Mr. Bobulinski. Do you have a question?
The Democratic staffer returned to the Oneida Holdings agreement between Bobulinski and Hunter Biden and — after much pulling of teeth — got Bobunlinski to admit that Joe Biden was not one of his partners.
Q You signed a limited liability agreement for Oneida Holdings, LLC, correct?
A I did.
Q And this is a truthful and accurate document about the organization of the company, right?
A It is. It’s a binding legal agreement.
Q You wouldn’t sign —
A That’s why I can confidently state they defrauded me in July of 2017, yes.
Q You wouldn’t sign your name to a false document, right?
A Of course not.
Q And this document accurately sets out who your business partners are, right?
A That’s a vague question, “accurately.” It commemorates who ultimately was —
Q The LLC document does not care about —
A Wait, wait, wait.
Q No. My questions, Mr. Bobulinski.
Are you — is your testimony here today that this limited liability company agreement does not clearly set forth the partners of Oneida Holdings, LLC?
A That was not my testimony. My testimony was that that executed agreement clearly defines there are five entities that own 20 percent each. I’ve gone through that, I think, now three times.
Q And those entities are Hunter Biden’s entities? A Correct.
Q James Biden’s entities?
A Correct.
Q John Walker’s entity?
A Well, not John Walker. Don’t misstate for the record.
Q John R. Walker.
A Rob Walker.
[snip]
Q Mr. Bobulinski, I’m just trying to ask you who your partners in Oneida 10 Holdings, LLC are. This isn’t supposed to be a hard question.
[snip]
BY MR. [redacted]:
Q This is a simple question, who his partners are.
A And I’m giving you simple answers. I’ve already testified to this three — I think, three times at this point.
Q So then let’s do it quickly. Your partners are Hunter Biden, James Biden, Rob Walker, James Gilliar, and yourself?
A Yeah, that’s an incorrect statement. My partners were the LLCs that represented Hunter Biden, Jim Biden, Rob Walker, James Gilliar, and myself.
Q Okay. Great.
And when you say that your — the Biden family cheated you, your partners —
A It’s called fraud.
Q Defrauded you.
A I used the specific word.
Q You’re referring to — you’re referring to James Hunter — James Biden and Hunter Biden, who opened Hudson West III. Is that correct?
A Ask the question. But, generally, I think.
Q Okay. So when you’re talking about the Biden — your partnerships with the 22 Biden family, you’re talking about Hunter Biden and James Biden?
A That’s not what I’m talking about. I’ve spent at least almost four hours now 24 talking about my meetings with Joe Biden, how Joe Biden was invoked, us trying to get 25 Joe Biden to a meeting in New York, and stuff like that, so I don’t —
Q Joe Biden was your partner?
There were some other choice moments, such as when Bobulinski treated the prospect of Trump taking CEFC money while Commander-in-Chief as merely hypothetical…
Q There was a report that came out in January in which the Oversight Committee Democratic staff showed with receipts that Donald Trump, while he was Commander in Chief, received money from CEFC.
Assuming that fact to be true, does that give you concern?
A I think your question is actually absurd, and the statement is absurd, because if you could show me that money — you’re acting — I guess you’re asking me to opine that did CEFC give Donald Trump money directly into his pocket. I can’t opine on that.
Q I’m just asking you if he were to have received money from CEFC, would you find that troubling? You just described at length how concerned you were at CEFC, the national security implications.
I’m asking you, a Commander in Chief —
A You’re asking me a hypothetical, and you want me to respond to the hypothetical?
Q Sure.
Mr. Passantino. You can respond to the best of —
Mr. Bobulinski. I would be just as concerned — maybe my answer would be, if the Trump family had done with CEFC what the Biden family had done, I would be equally as vocal and concerned about our national security and voicing those concerns and getting those facts out to the American people. I never did business with the Trump family. I never considered doing business and all that stuff, so I —
After which, in the next hour, Bobulinski corrected a Republican staffer who later said that allegation was mostly about Trump’s fancy DC hotel (though went on to say the condo via which CEFC paid Trump was about its location across from the UN, not Trump’s name).
Q And I just want to clarify one hypothetical that the minority brought up, which is if Donald Trump, Vice President, received any money from CEFC, I think some material facts that they omitted from that is that Donald Trump had a very famous hotel in Washington, D.C., and elsewhere.
And so they did not tell you in their hypothetical that, as part of the money that they’re describing, it’s people staying at his hotel.
A Okay. I didn’t — I’ve seen some articles reference that CEFC had a condo.
I was never in the condo, but if you read the 1,200 pages of the Patrick Ho trial, they reference that condo in Trump Tower New York that was — there’s a reason why.
If it was called the Smith Tower, they would have had one in the Smith Tower.
Democrats focused remarkably little on Bobulinski’s relationship with the son of Viktor Vekselberg (one of the issues that gave Rob Walker concern with doing business with Bobulinski). After he complained amounted to smearing him with, “Russia Russia Russia,” Democrats dropped it (and didn’t pursue other allegations of ties to Russian money or his inconsistent statements about the role of Rosneft in the split over CEFC).
Q And, when you were in Las Vegas, you were there with somebody named Alex Vekselberg, correct?
A Ask the question again.
Q Alex Vekselberg, you were in Las Vegas with Alex Vekselberg?
A I wasn’t there with him. He was in Las Vegas for other things, but he did —
Q At some point, you were together with him in Las Vegas?
A I was. I was, correct.
Q And you know that Mr. Vekselberg is the son of Viktor Vekselberg?
A Well, I know that Alex Vekselberg is an American citizen born in the United States, a Yale-educated individual and a successful businessman in his own right. And I do know that he is the son of Viktor Vekselberg.
Q And you know that Viktor Vekselberg is a Russian oligarch who’s been sanctioned now by the United States several times?
A It’s actually funny you should ask me that. I’m actually surprised you guys don’t know this. Viktor Vekselberg was actually born in Ukraine. So he’s not a Russian.
He’s a Ukrainian businessman. You can look it up. I think I was born within a hundred miles of the Polish border, and so he’s a Ukrainian businessman.
And I don’t — I’m not aware of — I thought you guys were big supporters of Ukraine. You try to use Russia to paint different things, but he’s actually — my understanding, just — you can look it up. He was born in Ukraine. And — and so your question?
Q Oh, I think you answered my question.
A Okay, great. Oh, sorry, I didn’t answer your question. You asked — you made some reference to sanctions. I’m not aware of that and when that happened and all those nuances. But, once again, I can’t, because —
Q Well, you do know where he was born within a hundred miles.
A Well, because I looked it up, right? I wasn’t told that. I looked it up.
Everyone in here can look it up. And, second, I want to reiterate that Alex Vekselberg is an American citizen afforded the same rights, respect as you and I. Well, I can’t speak for you, that I am as an American citizen. And, at the time I had that meeting in Las Vegas, his father was not sanctioned by the United States.
Mr. [redacted] Do you not believe my colleague is deserving of rights and respect?
Mr. Passantino. If you’re going to accuse him of associating with Russian oligarchs, that’s the answer you’re going to get.
Mr. [redacted]. We’ve not accused him of anything.
Mr. Bobulinski. No, no, no, no. Yes, you have. Yes, you have. No, no, no.
Your operatives — no, no, no.
Mr. [redacted]. We’re not accusing you of anything.
Mr. Bobulinski. Your Democratic operatives have written smearing stuff about Russia, Russia, Russia, attacking my family and myself, and it’s disgusting to me. I’m a former Naval officer —
Mr. [redacted]. Let me ask you a question.
Mr. Bobulinski. — who had the highest security clearance. So wait. To your question, I didn’t show her — I said I can’t assume she’s an American citizen. I don’t know that she’s an American citizen. I said he should be afforded all the rights and respect of an American citizen, as should I. If you’re an American citizen, then you should be afforded those same rights and respect.
That’s all background to Bobulinski’s alternative narrative about how he decided to take on Joe Biden — which he says started during the 2019 Trump impeachment and which led up — as Democratic staffers reviewed — to his pitch to the WSJ before the Hunter Biden laptop came out in 2020.
Q So you expressed the reasons you came forward. You said the first cog was the impeachment of Donald Trump. The second cog was the nomination of Joe Biden.
You came out with this information publicly just before, weeks before the 2020 Presidential election. Is that correct?
A It’s not a true statement. And, second, it wasn’t that Donald Trump is the individual who was being impeached. It was that a President of the United States was being impeached with the obfuscation of how the Biden family operated and did business around the world. That was my frustration, anger.
And so I started thinking I know them to operate and how they operate his business. There’s lies being told and obfuscation. So it wasn’t specific to Donald Trump as an individual. It was specific to a President of the United States being impeached over what I believed were lies about how the Biden family did business around the world and operated.
Q Thank you. Your October 2020 press conference at the Marriott in Nashville, Tennessee, who organized that for you?
Mr. Passantino. I guess you can answer, again, to the extent you know.
Mr. Bobulinski. Organized what for me exactly, I’m asking?
In the end, Bobulinski kept obfuscating about his ties to the Trump campaign.
But he did tie his involvement in this attempt to impeach Joe Biden with the first attempt to impeach Donald Trump.
David Weiss Is a Direct Witness to the Crimes on Which He Indicted Alexander Smirnov
On the day that Bill Barr aggressively intervened in the parallel impeachment inquiry and Hunter Biden prosecutions last summer, David Weiss’ office sent out a final deal that would resolve Hunter’s case with no jail time and no further investigation. Within weeks, amid an uproar about claims in an FD-1023 that David Weiss now says were false, Weiss reneged on that deal. With the indictment yesterday of Alexander Smirnov, the source of those false claims, Weiss confesses he is a direct witness in an attempt to frame Joe Biden, even as he attempts to bury it.
On June 7, 2023, Bill Barr went on the record to refute several things that Jamie Raskin described learning about Smirnov’s FD-1023. Specifically, the former Attorney General insisted that the investigation into the allegations Smirnov made continued under David Weiss.
It’s not true. It wasn’t closed down,” William Barr told The Federalist on Tuesday in response to Democrat Rep. Jamie Raskin’s claim that the former attorney general and his “handpicked prosecutor” had ended an investigation into a confidential human source’s allegation that Joe Biden had agreed to a $5 million bribe. “On the contrary,” Barr stressed, “it was sent to Delaware for further investigation.”
“It wasn’t closed down,” Bill Barr claimed. As I’ll show below, according to the indictment obtained under David Weiss’ authority yesterday, that’s a lie. “It was sent to [David Weiss] for further investigation,” Bill Barr claimed, not confessing that it was sent to Delaware on October 23, 2020, days after Trump had yelled at him personally about the investigation into Hunter Biden. According to Barr, Weiss was tasked with doing more investigation into the Smirnov claims than Scott Brady had already done.
In the Smirnov indictment, Weiss now says that he only did that investigation last year, and almost immediately discovered the allegations were false.
The same day the Federalist published those Barr claims, June 7, and one day after Hunter Biden attorney Chris Clark spoke personally with David Weiss, Lesley Wolf sent revised language for the diversion agreement that strengthened Hunter Biden’s protection against any further prosecution.
The United States agrees not to criminally prosecute Biden, outside of the terms of this Agreement, for any federal crimes encompassed by the attached Statement of Facts (Attachment A) and the Statement of Facts attached as Exhibit 1 to the Memorandum of Plea Agreement filed this same day.
That language remains in the diversion agreement Leo Wise signed on July 26, 2023.
According to an unrebutted claim from Clark, on June 19, 2023, Weiss’ First AUSA Shannon Hanson assured him there was no ongoing investigation into his client.
36. Shortly after that email, I had another phone call with AUSA Hanson, during which AUSA Hanson requested that the language of Mr. Biden’s press statement be slightly revised. She proposed saying that the investigation would be “resolved” rather than “concluded.” I then asked her directly whether there was any other open or pending investigation of Mr. Biden overseen by the Delaware U.S. Attorney’s Office, and she responded there was not another open or pending investigation.
That day, June 19, was the first day Wise made an appearance on the case.
On July 10, a month after the former Attorney General had publicly claimed that his office sent the Smirnov FD-1023 to Weiss’ office for further investigation in 2020, Weiss responded to pressure from Lindsey Graham explaining why he couldn’t talk about the FD-1023: “Your questions about allegations contained in an FBI FD-1023 Form relate to an ongoing investigation.” The next day, Hanson fielded a request from Clark, noting she was doing so because “the team” was in a secure location unable to do so themselves. “The team” should have had no purpose being in a secure location; they should have been preparing for the unclassified plea deal.
By July 26, the same day Leo Wise signed a diversion agreement that said Hunter wouldn’t be further charged, he made representations that conflicted with the document he had signed, claiming Hunter could still be charged with FARA. That was how, with David Weiss watching, Wise reneged on a signed plea deal and reopened the investigation into Hunter Biden, leading to two indictments charging six felonies and six misdemeanors.
According to the Smirnov indictment, sometime in July (tellingly, Weiss does not reveal whether this preceded his letter to Lindsey Graham, whether it preceded the plea colloquy where Leo Wise reneged on a signed deal), the FBI asked Weiss’ office to help in an investigation regarding the FD-1023.
In July 2023, the FBI requested that the U.S. Attorney’s Office for the District of Delaware assist the FBI in an investigation of allegations related to the 2020 1023. At that time, the United States Attorney’s Office for the District of Delaware was handling an investigation and prosecution of Businessperson 1.
It is virtually certain that the FBI asked Weiss to pursue whether any leads had been missed in 2020, not whether Joe and Hunter Biden had been unfairly framed. That’s because Weiss cannot — should never have — led an investigation into how the Bidens were framed. He’s a witness in that investigation.
So it is almost certain that the FBI decided to reopen the investigation into the FD-1023, perhaps based in part on Bill Barr’s false claims. It is almost certain that this investigation, at that point, targeted Joe and Hunter Biden. It is almost certain that this is one thing Weiss used to rationalize asking for Special Counsel authority.
And that’s probably why, when Weiss’ team interviewed Smirnov on September 27, Smirnov felt comfortable adding new false allegations.
51. The Defendant also shared a new story with investigators. He wanted them to look into whether Businessperson 1 was recorded in a hotel in Kiev called the Premier Palace. The Defendant told investigators that the entire Premier Palace Hotel is “wired” and under the control of the Russians. The Defendant claimed that Businessperson 1 went to the hotel many times and that he had seen video footage of Businessperson 1 entering the Premier Palace Hotel.
52. The Defendant suggested that investigators check to see if Businessperson 1 made telephone calls from the Premier Palace Hotel since those calls would have been recorded by the Russians. The Defendant claimed to have obtained this information a month earlier by calling a high-level official in a foreign country. The Defendant also claimed to have learned this information from four different Russian officials.
Smirnov seemingly felt safe telling new, even bigger lies. In his mind, Hunter and Joe were still the target! Again, that is consistent with the investigation into Hunter Biden being reopened based off Bill Barr’s public pressure.
According to the Smirnov indictment, David Weiss’ team found evidence that proves Bill Barr lied and Scott Brady created a false misimpression — the former, to pressure him — Weiss — and the latter, in testimony to Congress that was also part of the pressure campaign against the Bidens.
Compare Bill Barr’s claim made on the day when Weiss agreed that Hunter would face no further charges with what the Smirnov indictment states as fact. The Smirnov indictment says that Scott Brady’s office closed the assessment, with the concurrence of David Bowdich and Richard Donoghue, which is what Jamie Raskin said (though Raskin said Barr himself concurred).
40. By August 2020, FBI Pittsburgh concluded that all reasonable steps had been completed regarding the Defendant’s allegations and that their assessment, 58A-PG-3250958, should be closed. On August 12, 2020, FBI Pittsburgh was informed that the then-FBI Deputy Director and then-Principal Associate Deputy Attorney General of the United States concurred that it should be closed.
But Barr told the Federalist that it was not closed down, it was forwarded — by Richard Donoghue, days after the President yelled at Barr about this investigation (though he didn’t say that) — to David Weiss for more investigation.
It’s not true. It wasn’t closed down,” William Barr told The Federalist on Tuesday in response to Democrat Rep. Jamie Raskin’s claim that the former attorney general and his “handpicked prosecutor” had ended an investigation into a confidential human source’s allegation that Joe Biden had agreed to a $5 million bribe. “On the contrary,” Barr stressed, “it was sent to Delaware for further investigation.”
Had it been forwarded to David Weiss for more investigation, had he taken those additional investigative steps Barr claims he was ordered to do, Weiss would have discovered right away the key things that proved Smirnov was lying, the claims that Scott Brady had claimed to investigate, the things that the Smirnov indictment suggest he newly discovered months ago.
According to Scott Brady’s testimony to Congress, his team asked Smirnov’s handler about things like travel records and claimed that it was consistent.
Mr. Brady. So we attempted to use opensource material to check against what was stated in the 1023. We also interfaced with the CHS’ handler about certain statements relating to travel and meetings to see if they were consistent with his or her understanding.
Q And did you determine if the information was consistent with the handler’s understanding?
A What we were able to identify, we found that it was consistent. And so we felt that there were sufficient indicia of credibility in this 1023 to pass it on to an office that had a predicated grand jury investigation. [my emphasis]
According to the Smirnov indictment, Weiss’ team asked the handler the same question — about travel records. Only, they discovered that Smirnov’s travel records were inconsistent with the claims the handler himself recorded in the FD-1023.
43. On August 29, 2023, FBI investigators spoke with the Handler in reference to the 2020 1023. During that conversation, the Handler indicated that he and the Defendant had reviewed the 2020 1023 following its public release by members of Congress in July 2023, and the Defendant reaffirmed the accuracy of the statements contained in it.
44. The Handler provided investigators with messages he had with the Defendant, including the ones described above. Additionally, the Handler identified and reviewed with the Defendant travel records associated with both Associate 2 and the Defendant. The travel records were inconsistent with what the Defendant had previously told the Handler that was memorialized in the 2020 1023.
Tellingly, when Brady was asked more specific questions about Smirnov’s travel records, his attorney, former Trump-appointed Massachusetts US Attorney Andrew Lelling, advised him, twice, not to answer.
Q And did you determine that the CHS had traveled to the different countries listed in the 1023?
Mr. Lelling. I would decline to answer that.
[snip]
Q The pages aren’t numbered, but if you count from the first page, the fourth page, the first full paragraph states, following the late June 2020 interview with the CHS, the Pittsburgh FBI Office obtained travel records for the CHS, and those records confirmed the CHS had traveled to the locales detailed in the FD1023 during the relevant time period. The trips included a late 2015 or early 2016 visit to Kiev, Ukraine, a trip a couple months later to Vienna, Austria, and travel to London in 2019. Does this kind of match your recollection of what actions the Pittsburgh FBI Office was taking in regards to this.
Mr. Lelling. Don’t answer that. Too specific a level of detail
Q You had mentioned last hour about travel records.
Did your office obtain travel records, or did you have knowledge that the Pittsburgh FBI Office obtained travel records?
Mr. Lelling. That you can answer yes or no.
Mr. Brady. Yes.
If Brady obtained those travel records, he would have discovered what Weiss did: Neither Smirnov’s travel records nor those of his subsource, Alexander Ostapenko, are consistent with the story Smirnov told.
o. Associate 2’s trip to Kiev in September 2017 was the first time he had left North America since 2011. Thus, he could not have attended a meeting in Kiev, as the Defendant claimed, in late 2015 or 2016, during the Obama-Biden Administration. His trip to Ukraine in September 2017 was more than seven months after Public Official 1 had left office and more than a year after the then-Ukrainian Prosecutor General had been fired.
[snip]
34. Further, the Defendant did not travel to Vienna “around the time [Public Official 1] made a public statement about [the thenUkrainian Prosecutor General] being corrupt, and that he should be fired/removed from office,” which occurred in December 2015.
Paragraph after paragraph of the Smirnov indictment describe how the travel records — the very travel records that the handler and Scott Brady claimed corroborated the allegation — proved Smirnov was lying.
The record is quite clear that Bill Barr and Scott Brady made false representations about activities that directly involved David Weiss in 2020.
And yet Weiss has been playing dumb.
Abbe Lowell made a subpoena request and a discovery request relating to these matters on November 15. Lowell not only laid out this scheme in his selective and vindictive prosecution claim, but he cited the Federalist story in which Barr lied. He cited these matters in his discovery request.
Rather than acknowledging that Weiss’ team had discovered evidence that proved the claims of Barr and Brady were misrepresentations, Weiss’ team lied about the extent of Richard Donoghue’s role — documented in a memo shared by Gary Shapley — in forcing Weiss to accept the FD-1023 on October 23, 2022.
Next, defendant alleges that “certain investigative decisions were made as a result of guidance provided by, among others, the Deputy Attorney General’s office.” ECF 58, at 3 n.4. In fact, the source cited revealed that the guidance was simply not to conduct any “proactive interviews” yet.
And now, on the eve of Abbe Lowell submitting a reply on his motion to compel and a selective prosecution and discovery request in California, David Weiss has unveiled a belated indictment proving that Lowell’s allegations were entirely correct. The indictment may well provide excuse to withhold precisely the discovery materials Lowell has been demanding for months, and it may create the illusion that Barr’s pressure led Weiss to renege on a plea deal. But it is a confession that there was an attempt to frame Joe Biden and his son in 2020.
What David Weiss discovered — if he didn’t already know about it — is that he was part of an effort to frame Joe Biden in 2020, an effort that involved the Attorney General of the United States. If Merrick Garland is going to appoint Special Counsels for these kinds of things, one should be appointed here, especially given that Donoghue required the briefing on the FD-1023 days after Trump personally intervened with Bill Barr.
But David Weiss can’t lead that investigation. He’s a witness to that investigation.
Update: Fixed how long it took Weiss to renege on the deal after Bill Barr’s false claim.
See Hunter Biden’s Eight Legal Chessboards for links to all the filings.
Where Derek Hines Claims to Have Gotten the Hunter Biden Dick Pics He Sniffed
Even if Judge Maryellen Noreika threw out the gun charges against Hunter Biden today, I’d be grateful for the recent squabble over Hunter Biden’s motion to compel, and not just for the endless amusement of seeing an experienced drug prosecutor like Derek Hines claim sawdust on a table saw is cocaine.
That’s because by providing what he thinks is solid proof that Hunter was an addict in 2018, Hines has revealed a bit about where such evidence exists among the digital evidence he has in hand and where it doesn’t.
Most significantly, for this case, it appears Derek Hines relied exclusively on the laptop to get the texts surrounding the period immediately after Hunter Biden bought a gun. Particularly given the turmoil in Hunter’s access to his devices in those precise days, without validation of the texts in an Apple database, that would make the texts far harder to use at trial.
As a reminder, the Apple data at issue comes from three places:
- An initial warrant dated August 29, 2019 to obtain all the contents of Hunter Biden’s iCloud account
- The December 13, 2019 warrant to access all the contents of the laptop obtained from John Paul Mac Isaac, which investigators used to access devices backed up to iTunes on it
- A follow-up warrant dated July 10, 2020 to access the backups of four devices saved to Hunter’s iCloud account, described in a fourth warrant as:
- iPhone X (Apple Backup 1)
- iPhone 6S (Apple Backup 2)
- iPad Pro (Apple Backup 4)
- iPhone XR (Apple Backup 11)
In December, Hines got a warrant to search the existing data for gun crime evidence, but did not go back to obtain a warrant to access any backed up devices — if they exist — that would be more appropriate to the gun charges.
Hines claimed, in his response to Hunter’s selective prosecution bid that, “the results of the search” of the laptop “were largely duplicative of information investigators had already obtained from Apple.” In his response to Hunter’s motion to compel, he claimed that, “Many of the same messages, photographs, and information that were obtained from the iCloud warrants were also located on the defendant’s laptop,” but made no representations about the reverse — whether all the messages present on the laptop were in the iCloud production.
It appears they were not.
This table shows my rough transcription the 28 items included in Hines’ exhibit of gun-related evidence. Let me know of errors, particularly with my time conversations between UTC and “Hunter time,” which I’ve assumed was PT for the earlier texts and ET for the later ones. I’ve bolded those instances where “Hunter time” is the day before UTC time. My transcription of the hex identifiers, where Hines included them, are especially likely to have errors (and only include the first identified hex for each item).
These items include:
Items 1, 26-28: Four pictures, all of which he has presented without hex identifiers or EXIF metadata. Two come from iPhone backups obtained from Hunter’s iCloud (one being the iPad on which items 28-25 were found); two (including the sawdust picture) come from what is described as an iPhone 11 backed up to iTunes, apparently found on the laptop; I’m aware of no public record of Hunter owning an iPhone 11. Note: for the reason zscoreUSA notes below, Hines’ label of the sawdust picture as an iPhone 11 must be an error, as those were first released on September 20, 2019, too late to be on the laptop, and only possible to be included in the iCloud returns if Hunter got one the day they were released and backed up everything to an iPhone 11. So it may be a typo for iCloud backup 11, which would be an iPhone XR.
Items 2-10: Nine texts, dated between May and July 2018, obtained from iCloud Backup 1, which the warrant return describes as an iPhone X. Six of those, items 5 through 10, appear to record a drug transaction arranged over the course of a half hour overnight on July 25-26. While this backup is associated with an iPhone X of uncertain vintage (Hunter went through at least three iPhone Xes in 2018), seven items were obtained from a device called XRNASHUA, an iPhone XR; Apple did not introduce the iPhone XR until October 2018 and Hunter is not known to have obtained his first one until spring 2019, in New Haven, not Nashua. The only two communications obtained from an iPhone X, Items 3 and 4, used an unknown phone number. Item 2 is a WhatsApp text.
Items 11-17: These texts, showing exchanges between Hunter and Hallie Biden on October 13, 14, and 23, derive from what Hines describes as an iTunes Backup. Hines doesn’t identify of which phone — not even the device type — nor does the metadata included identify which phone Hunter used. Just one of the texts Hunter sent, item 13, is described as “delivered” after it was “sent.” I’ll return to these below.
Items 18-25: These texts came from an iPad Pro called “Robert’s iPad” which, based on the serial number included in Gus Dimitrelos’ report, was purchased in November 2015.
iPad Pro 12.9-inch (1st generation) Wi-Fi
Purchase Date: November 2015
Serial Number: DLXQL4EUGMLD
Emails released on BidenLaptopEmails dot com show someone logging into Hunter’s iCloud, Facetime, and iMessage with an iPad Pro on November 11, 2015, the same day Gus Dimitrelos shows it — named as Roberts, no apostrophe, iPad — logging into Hunter’s iCloud account. The next day, a pricy iPad pencil was ordered from Apple, though it was on backorder until January 2016. On May 20, 2016, Find my iPad was used to play a sound on an iPad called “iPad 206” twice. The process of signing into iCloud, then Facetime and iMessage with an iPad Pro, was repeated on September 11, 2016, what Dimitrelos describes as the first access by iPad 206, the one already associated with Hunter’s account earlier that year. On October 26, 2016, Find my iPad was disabled on iPad Pro 206 and on November 13, 2016 the cards were removed and the device was deleted — presumably, given that Find my iPad had been disabled, in person. Those same publicly released emails show no other iPad Pros logging for the first time into Hunter’s account, though in August 2018, an iPad (not identified as a Pro) was deleted, with that process completing in September 2018. But Dimitrelos shows four other iPads named either “Robert’s” or “Roberts” iPad logging into Hunter’s account (February 19, 2013, August 24, 2017, October 21, 2017, January 21, 2018). Of the texts included in Hines’ exhibit, which were sent between November 8 and December 27, 2018, just one, item 20, was marked as delivered and read, and it wasn’t one of the ones sent to probable family members.
I’ll leave the technical discussion there, in case anyone understands how Apple tracks iMessage texts or the difference between texts saved in ChatStorage and SMS.
But several general conclusions stick out. First, it’s likely that two of the devices for which Hines got a new warrant for drug crimes in December 2018, iCloud Backup 2, a 6S, and iCloud Backup 3, seemingly a different XR, had no communications pertinent to the year in question, 2018 [update: unless the explanation for Hines’ error in labeling photos as iPhone 11 is a typo for iCloud backup 11]. That will be of interest if Abbe Lowell ever gets to file a suppression motion, since there could be no probable cause to obtain content from an unrelated period. Second, it’s not clear that any of these devices were the devices on which the communications in question were sent. Hines’ best evidence of a drug purchase — those texts from July 25-26, 2018 — would probably have been sent in an iPhone X and then synched onto an iPhone XR purchased quite a bit later. As with all the other digital evidence Hines seems not to have thought through, given how often Hunter lost devices with access to his iCloud account and how rarely he reset it, it’s not enough to show that texts saved through Hunter’s iCloud showed evidence of a drug purchase. You would have to show that the phone on which those texts were originally sent was in Hunter’s hand at the time the texts were sent.
And this problem is especially fraught for those October 13-14 texts sent between Hallie and Hunter in October 2018, by far the most important evidence for his case. Here’s how they fit in with the timeline I laid out here, showing how Hunter responded after realizing he had misplaced both his main phones on October 11. The two main texts (in bold below) appear to have been sent before Hunter first logged into his new replacement iPhone and before he changed his password, even while people were clearly trying to break into some of his accounts. So prosecutors would have to prove that those texts weren’t sent by whoever inherited the phones Hunter had just lost.
Timeline
October 12, 12:56PM: As you requested, your temporary [AT&T] password is: ****** Use your user ID and temporary password to sign in to your account.
October 12, 12:56PM: Looks like you recently updated the AT&T password.
October 12, 12:57PM: Critical security alert for your linked Google Account, Sign-in attempt was blocked for your linked [RosemontSeneca] Google Account [device not specified]
October 12, 3:25PM: Thanks for using your AT&T Device Protection Plan! Your claim [ending in 431] has been started
October 12, 3:32PM: Thanks for using your AT&T Device Protection Plan! Your claim [ending in 431] has been started
October 12, 3:38PM: Thanks for using your AT&T Device Protection Plan! Your claim [ending in 579] has been started
October 12, 3:40PM: Your [AT&T] insurance claim [phone ending in 96]
October 12, 3:44PM: Your [AT&T] insurance claim [phone ending in 13]
October 12, 3:49PM: Thanks for using your AT&T Device Protection Plan! Your claim [ending in 701] has been started
October 12, 3:55PM: Please complete and return your claim documents Wireless Number: **94
October 12, 3:57PM: Thanks for using your AT&T Device Protection Plan! Your claim [ending in 799] has been started
October 12, 4:03PM: Please complete and return your claim documents Wireless Number: **29
October 12, 5:35PM: Hello. Review your AT&T order
October 12, 6:22PM: Good news. Your replacement device [grey Apple iPhoneX] has shipped. [phone ending in 13]
October 12, 6:24PM: Phone [email from Joey]
Hey, You left your phone and other things. Tried to reach you at 202 and 302 all day but no luck. Let me know where to overnight.
October 12, 7:20PM: Good news. Your replacement device [iPhone 8] has shipped. [phone ending in 96]
October 12, 8:00PM: Verify your Samsung account [accessing Hunter’s iCloud]
October 12, 11:31PM: Someone Just Checked Your Background Report
October 13, 7:10AM: (Email) You left your phone. How do I get it to you?
joey
October 13, 7:26AM: (Email) You left your phone. How do I get it to you?
joey
October 13, 11:13AM: Let’s setup your AT&T replacement device [phone ending in 13]
October 13, 12:35AM: Someone Just Checked Your Background Report
October 13, 2:00PM: Hello, Review your AT&T order [changes to wireless]
October 13, 9:17PM: Your [RosemontSeneca] Google Account was just signed in to from a new Samsung Galaxy Note 9 device
October 13 10:30PM: I’m now off MD Ave behind blue rocks
October 13, 11:36PM: Wells Fargo Has Registered Your Mobile Device
October 14, 5:37AM: I was sleeping in a car
October 14, 2:24PM: Your Apple ID password has been reset
October 14, 2:24PM: Your Apple ID was used to sign in to iCloud on an iPhone X
October 14, 3:28PM: Wells Fargo card added to Apple Pay
October 14, 3:36PM: Verify your Samsung account [on iCloud]
October 14, 7:48PM: (Email from Joey) “Overcoming myself”
When you have a minute, read ….
Open my shared note:
Exp[o]rt Reports: When David Weiss Claimed Keith Ablow’s Sawdust Was Hunter Biden’s Cocaine
As Garrett Ziegler was confessing, again, to have accessed a password-protected phone backup (for which Hunter Biden is suing him), he described that this is a photo of a photo in the office of then-still licensed psychiatrist Keith Ablow, which Ablow sent Hunter Biden, explaining that the photo came from an expert carpenter who was trying to kick a coke habit.
Ziegler was even kind enough to include the June 2, 2022 extract date of the iPhone XS iTunes backup where he found the picture, even while bitching of the dishonor and incompetence of David Weiss and his team.
David Weiss says the picture isn’t one of sawdust passed on by Keith Ablow. He says it’s a picture that Hunter Biden took himself of “apparent cocaine” sometime in late 2018.
During November and December 2018, the defendant took multiple photographs of videos apparent cocaine, crack cocaine, and drug paraphernalia.
Weiss doesn’t provide a date for the photo. But he says it came from an iPhone 11 backup stored to iTunes, though he’s not telling whether he found it in an iTunes backup in Hunter’s iCloud account obtained in September 2019, or an iTunes backup found on a laptop attributed to Hunter Biden obtained in December 2019.
iTunes Backup (iPhone 11) – Production 1
Now, perhaps it’s a good thing that David Weiss didn’t know he was (at least per Ziegler, who — bizarrely — has more credibility than the people who have a stack of warrants and lots more metadata) falsely claiming that this picture depicted cocaine. Perhaps that means he didn’t breach Hunter’s privileged communications with Ablow and read what the then still-licensed psychiatrist had to say to his client.
But he has just made the competence of his team’s forensic analysis an issue, and done so in a filing in which Derek Hines appears to be claiming they don’t need any expert forensic reports.
In the motion to compel to which Hines was responding, Abbe Lowell had claimed that Weiss had not turned over any expert reports.
Mr. Biden requested the ongoing production of all materials subject to disclosure under FRCP 16(a)(1)(A), (B), and (D). (See DE 65.) Mr. Biden notes that his October 2023 Rule 16 requests also cover any expert reports that the prosecution intends to rely upon at trial; to date, however, no expert reports or materials have been identified or produced to defense counsel.
The prosecution produced a Delaware state police case file, which includes a summary of an interview Mr. Biden gave police in October 2018 and other information about the purchase, discard, and recovery of the firearm, as well as evidence photos from its case file. The prosecution also produced an ATF case file that has additional information about the firearm and statements about its purchase. Mr. Biden asks the Court to order the prosecution to either (1) confirm no further responsive documents or communications exists in its possession (which includes material in the possession of all relevant government agencies and officials), or (2) produce the requested documents (including any expert reports) and, if the prosecution believes any responsive documents are protected from disclosure, identify those documents and the reasons why the prosecution believes they need not be disclosed.
Not true!, responded Hines in the filing where he appears to have claimed a photo of sawdust taken by a Keith Ablow client was instead a photo of cocaine taken by Hunter Biden.
Hines described that the prosecution has provided two expert reports: that of the FBI chemist who — five years after the gun was seized — found cocaine residue in the pouch in which the gun was found, but didn’t look for fingerprints or try to date the cocaine.
The defendant does not allege any Rule 16 materials are missing from the productions other than one assertion that, “to date, however, no expert reports or materials have been identified or produced to defense counsel.” ECF 83 at p 6. He is incorrect. On November 7, 2023, the government produced to the defendant an expert report prepared by an FBI chemist who analyzed the cocaine discovered on the defendant’s brown leather pouch that had contained his gun.1 In this same production, the government also produced an expert report prepared by an agent related to the interstate nexus of the gun charged in the indictment.2 In addition to these reports, the government produced other materials for these two experts, including CVs, as well as a CV for an additional expert.3 By contrast, the defendant has failed to provide any discovery, including any expert discovery.
In addition, prosecutors provided the CV for the witness who’ll attest the gun had a nexus to interstate commerce and the CV for … Hines isn’t describing what kind of witness that is.
But there are at least four reports I expected to see that are missing:
- The FBI agent John Paul Mac Isaac calls “Matt” who (at least per JPMI, who like Ziegler might be as reliable as Weiss at this point) described trying to boot up the laptop on December 9, 2019, four days before the known warrant to access the laptop
- The FBI Computer Analysis and Response Team analyst named Mike Waski, from whom Josh Wilson claims to have obtained the laptop after he had already obtained the laptop four days earlier from JPMI
- The FBI CART analyst, Eric Overly, who actually imaged the hard drive, which Gary Shapley notes happened after December 13; there may be a different CART analyst who imaged the laptop itself who would be on the hook for another expert report
- A March 31, 2020 email about the completeness of the disk image that JPMI had done, which prosecutors were withholding from any agents who might testify at trial but which Shapley has kindly informed us exists
- Any analysis “computer guy” did after October 22, 2020, which is when the FBI realized they had never bothered to check when files had been added to the laptop they had been using for ten months
Those kinds of expert reports are precisely what might have spared poor Senior Assistant Special Counsel Derek Hines from apparently claiming that a photo of a photo of sawdust taken by Keith Ablow is instead a photo of cocaine taken by Hunter Biden.
For example, here’s how Gus Dimitrelos used EXIF data — EXIF data he says he found on most or all of the photos Hunter took — to validate photos to Hunter on the laptop attributed to him.
In this case, Dimitrelos matched the photo to a known iPhone Hunter used and a known location he was at on a particular date and time.
To use photographs to attribute to Hunter Biden cocaine use, those photos are not only going to need to depict cocaine rather than sawdust, but they’re going to need to be accompanied by the kind of forensic data that could prove that a particular phone taking a picture was in Hunter’s hand at the time a picture was taken.
That’s particularly true in this case. Ziegler shows that Ablow texted this photo to Hunter on November 20, 2018.
That happens to be the day when someone first accessed Hunter’s droidhunter account — the one via which his digital life would be packaged up two months later — from a Mac device for the first time after the laptop ultimately shared with the FBI was first logged into Hunter Biden’s iCloud account.
But based on what is available on the public emails, after someone logged into Hunter’s iCloud account with a new laptop on October 21, 2018, it was weeks before a new Mac device logged into his Gmail accounts, starting with a November 16 attempt to log into Rosemont Seneca that was rejected by Google, followed by a reset of the droidhunter account and a login into that on November 20, followed by a login into Rosemont Seneca on November 24. Not only did those attempts come in the midst of a bunch of attempts to get into Hunter Biden’s Twitter account from a Mac. But on November 27, someone appears to have gotten into his iCloud account from Troutdale, OR.
That is, because this text was sent during a period when some crucially important anomalies were happening on Hunter Biden’s digital accounts, you’d need to ensure that whatever device with which Hunter seemingly engaged in this exchange with Ablow was actually in his hand in Newburyport, MA, and not in someone else’s hand in Troutdale, OR. That’s especially important with any conversation with Ablow, because in at least two known conversations — one in which he created the illusion for Hunter that he was speaking to some orthopedic surgeons, and another in which he entirely rewrote a Hunter comment subsequently published in Vanity Fair — Ablow presented as Hunter.
And by claiming a photo of sawdust taken by an Ablow client is instead a photo of cocaine taken by Hunter Biden, Derek Hines may have spoiled his effort to sand-bag Abbe Lowell and avoid a suppression challenge to all this digital evidence. Sure, Hines is claiming that Lowell missed his window to file a motion to suppress by December 11, 2023. But he apparently just claimed that he hasn’t validated the data he’s submitting, as an officer of the court, in filings before Judge Maryellen Noreika. And with this apparent flub, Hines has definitely made the importance of expert forensic reports an issue.
It appears increasingly likely that before Jim Jordan demanded a prosecution of Hunter Biden and before David Weiss started to worry about threats to his family, Weiss or someone who knew better realized that any prosecution that would rely on this digital evidence would be rife with these kinds of embarrassments. But then Weiss decided he’d go forward anyway, he’d bring in experts in prosecutorial dickishness to try to sandbag their way through the difficulties posed by the laptop.
Don’t get me wrong: Hines and Leo Wise have well earned their reputation for prosecutorial dickishness. This effort to avoid any suppression challenge relating to the laptop might yet succeed!
But without the least little understanding of digital forensics, that may not be enough to sustain this case.
Update: According to someone familiar with Ablow’s office in this period, the photo does appear to match one that was in the office. That’s important because the FBI and DEA would have photos of Ablow’s office from the 2020 raid.
Update: We’ve literally come full circle. Fox News is in a tizzy because of these photos, though they appear more careful than DOJ to claim the sawdust is Hunter’s.
Joseph Ziegler[‘s Filter Documents] Say Derek Hines Is Lying
For years, there have been questions about whether, and if so how, Hunter Biden could ever be prosecuted using evidence from the laptop. As I noted here, David Weiss and Derek Hines revealed how they intend to do that yesterday. The answer is, by engaging in unbelievably dickish sandbagging of the President’s son.
The ploy involved two steps. First, prosecutors provided Hunter digital evidence in October, with warrants only for tax crimes. At that point, there was no reason to assess those warrants for suppression, because they did not permit searches for gun crimes.
Then, exactly seven days before the motions deadline in the case, they provided a new warrant, for the first time presenting a warrant covering gun crimes. They now claim that because Abbe Lowell did not move to suppress the laptop by that motions deadline seven days later, he has waived his opportunity.
I’m not saying that this kind of ethically problematic gimmick won’t work, nor am I saying it only happens to privileged white men like Hunter. But it is shocking that that is how they plan to bury legal and forensic problems with evidence from the laptop.
I think it likely Lowell may respond by saying there are a whole bunch of things — such as evidence the FBI conducted analysis long before they obtained the laptop and determined John Paul Mac Isaac had unlawfully accessed it and known forensic reports describing problems with the data — that he should have been provided. I expect Lowell will point to this gimmick and describe that it is proof these men are no longer entitled to the presumption of regularity, and therefore the gun charges should be reviewed for vindictive prosecution.
Lowell may also point out that evidence Joseph Ziegler made public shows that a key premise behind this gimmick is false.
Part of Hines’ gimmick is a claim that investigators could, and — the response suggests — did, find evidence pertaining to gun crimes while seeking evidence of Hunter’s state of mind pertaining to the tax crimes.
The warrant authorized investigators to search for the same violations referenced in the previous paragraph, that is, violations of 26 U.S.C. § 7201, Tax Evasion, 26 U.S.C. § 7203, Willful Failure to File Tax Returns or Pay Taxes, and 26 U.S.C. § 7206(1), False Tax Returns. Relevant to this case, this warrant also authorized investigators to seize “evidence indicating the state of mind of the owner and user of the TARGET MACBOOK PRO and TARGET EXTERNAL HARD DRIVE as it relates to the crimes under investigation.” Again, evidence that showed the defendant’s addiction to controlled substances indicates “the state of mind of the owner and user of the TARGET MACBOOK PRO and TARGET EXTERNAL HARD DRIVE as it relates” to the to the tax crimes enumerated in the warrant.
Except Joseph Ziegler helpfully told us what he looked for with that very same warrant when he provided the filter term document to Congress. While he included “halliebiden” (meaning a few of these texts might come in), porn, and girl, he did not include drugs, cocaine, crack, or any other drug-related term.
Cathay
Cathay Bank
CEFC
Cooper
debit
deduction
Dennis Louis
Devon
Dhabi
Dodge
draw
That is investigators wouldn’t find most of these communications as part of the tax investigation.
In fact, Garrett Ziegler has identified several that involve Hunter’s then still licensed psychiatrist, Keith Ablow, which would have been filtered, and aren’t drugs at all.
Again, to be clear, Hines intends to bypass all scrutiny of the laptop with his unethical sandbagging, and he might get away with it.
But in the process, he’s making claims refuted by public evidence.
David Weiss Claims to Have Plain Viewed Hunter Biden’s Dick Pics for Years
In response to Hunter Biden’s notice of the schedule in California submitted in his Delaware case, Judge Maryellen Noreika asked what was up with Biden’s motion to compel submitted more recently.
ORAL ORDER re 84 Status Report – Having reviewed Defendant’s status report, which states that his motions to dismiss are fully briefed but is silent as to his most recently filed motion to compel discovery (D.I. 83), IT IS HEREBY ORDERED that, on or before February 14, 2024, the parties shall notify the Court whether the parties have reached an agreed-upon briefing schedule for the recent motion to compel or whether briefing will proceed pursuant to the Court’s Standing Order Regarding Responses to Defense Motions in Criminal Cases. ORDERED by Judge Maryellen Noreika on 2/13/2024.
David Weiss responded by explaining his legal basis for accessing Hunter Biden’s dick pics and claiming that Abbe Lowell has forfeited any ability to challenge evidence thus seized. It reveals how Weiss plans to introduce evidence from stolen data that was originally accessed without a warrant in a case against the son of the President of the United States.
It is breathtaking in sheer ethical shoddiness.
And, it may work.
Derek Hines describes that he provided Abbe Lowell the tax warrants to access the iCloud, the laptop, and backups in October, and that because those warrants permitted the search for the what the warrant claims was the email account owner’s state of mind, then searching for evidence of addiction was fair game.
Relevant to this case, investigators were authorized by these warrants to seize “evidence indicating the email account owner’s state of mind as it relates to the crimes under investigation.” Evidence that showed the defendant’s addiction to and use of narcotics indicates “the email account owner’s state of mind as it relates” to the tax crimes enumerated in the warrant. In addition, investigators were also permitted to seize evidence relevant to this case under the plain view doctrine, which they did. This evidence, from the defendant’s backups of his devices to his iCloud account, was produced with the warrants in Production 1 in an easily searchable format. The primary source of electronic evidence in this case is from the defendant’s iCloud account, which investigators were authorized to seize because it showed “the email account owner’s state of mind as it relates to the crimes under investigation” as well as under the plain view doctrine.
Production 1 also included the contract the defendant signed when he dropped off his laptop and hard drive at the computer repair store in which he agreed that, “[e]quipment left with the Mac Shop after 90 days of notification of completed service will be treated as abandoned.” Investigators also obtained a search warrant authorizing them to search the laptop and hard drive that was obtained from the computer repair store. See District of Delaware Case No. 19-309M, issued on December 13, 2019. The warrant authorized investigators to search for the same violations referenced in the previous paragraph, that is, violations of 26 U.S.C. § 7201, Tax Evasion, 26 U.S.C. § 7203, Willful Failure to File Tax Returns or Pay Taxes, and 26 U.S.C. § 7206(1), False Tax Returns. Relevant to this case, this warrant also authorized investigators to seize “evidence indicating the state of mind of the owner and user of the TARGET MACBOOKPRO and TARGET EXTERNAL HARD DRIVE as it relates to the crimes under investigation.” Again, evidence that showed the defendant’s addiction to controlled substances indicates “the state of mind of the owner and user of the TARGET MACBOOK PRO and TARGET EXTERNAL HARD DRIVE as it relates” to the to the tax crimes enumerated in the warrant. In addition, investigators were also permitted to seize evidence relevant to this case under the plain view doctrine. Evidence seized pursuant to this warrant was produced to the defendant in the specific format that he requested. Many of the same messages, photographs, and information that were obtained from the iCloud warrants were also located on the defendant’s laptop. [my emphasis]
In other words, for months, they were claiming that they had found evidence of addiction in the name of searching for tax crimes and if not that, then plain view and that’s all they were relying on while searching Hunter Biden’s dick pics for five years.
Plain view is the concept that if you see evidence of a crime while looking for other crimes, you can use that evidence at trial (usually, after getting another warrant).
Derek Hines described (there are ways to prove this is false, if Lowell gets his shot to do that, but Hines claims he has forfeited that chance) sniffing Hunter Biden’d dick pics for years, all in the name of tax crimes.
Then, Hines described, he got the December 4 warrant for the very same information, and Abbe Lowell acknowledged seeing it on December 5, which gave them another legal authority to sniff Hunter Biden’s dick pics.
On December 4, 2023, investigators obtained an additional search warrant for the defendant’s iCloud account, the backup data associated with his iCloud account, his MacBook Pro laptop, and the hard drive. See District of Delaware Case No. 23-507M, issued on December 4, 2023. This warrant authorized investigators to search for violations of 18 U.S.C. § 924(a)(6) and 924(a)(2) related to making a false statement during a background check to deceive a firearms dealer, violations of 18 U.S.C. § 924(a)(1)(A) related to making a false statement during a background check on records that the firearms dealer was required to maintain, and violations of 18 U.S.C. 922(g)(3). Among other items, the warrant authorized investigators to seize “all evidence relating to addiction, substance use, and controlled substances, to include conversations, message communications, photographs, documents, and videos.” The December 4, 2023, warrant provided yet another legal basis for investigators to seize information relevant to this case from the defendant’s iCloud account, his iCloud backup files, his laptop, and his external hard drive. The warrant was produced to the defendant that same day, December 4, 2023. The following day, December 5, 2023, defense counsel sent the government a letter that acknowledged it had reviewed this search warrant. Because the actual evidence relevant to this case that was previously seized from the laptop, hard drive, and iCloud backup files had already been produced to the defendant on October 12, 2023, there was no additional evidence produced in response to this warrant.
Effectively, Weiss is saying that because Lowell did not immediately move to suppress the laptop and its progeny with just six day’s notice, that claim has been mooted.
The defendant’s pretrial motions were due on December 11, 2023. ECF 57. The defendant did not file any motions seeking to suppress evidence related to the search warrants and evidence produced to him on October 12, 2023, in Production 1. The December 4, 2023, warrant does not entitle him to file any now. In fact, the December 4, 2023 warrant moots any issues that could have been raised by the defendant had he filed a motion to suppress those warrants, and, in any event, he did not elect to file motions to suppress the evidence from the August 29, 2019, December 13, 2019, or July 10, 2020 warrants that were produced to him on October 12, 2023.
As I will show, the places where they obtained communications are themselves problematic, but if this claim that the December 4 warrant moots any suppression claim works, then Lowell will have no opportunity to challenge the fact that David Weiss wants to use stolen data to prosecute the son of the President except by challenging individual communications at trial.
I’ve literally never seen something this ethically brazen. Ever. (Though admittedly, I only cover federal trials; this kind of stuff goes on in state cases all the time.)
And they’re doing it to get away with investigating Joe Biden’s son for years using stolen data.
Rod Rosenstein’s Baltimore Club of Men Gunning for the Bidens
In an interview yesterday with Jake Tapper (transcript), Rod Rosenstein exhibited more familiarity with the Robert Hur report, which had been public for just three days, than he was about the Mueller investigation that he oversaw for two years, during ten months of which, Hur played a key role.
Tapper: He was your deputy at the Justice Department. Do you agree with his decision that Biden should not be charged, it was not a prosecutable case?
Rosenstein: Yes, Jake.
And it’s — most people haven’t read the entire report. And I don’t blame them. It’s 345 pages, about 1,400 footnotes. It’s very dense and well-reasoned. And I think, if you read the whole report, you will conclude that Rob reached a reasonable decision that, given all the circumstances, that prosecution is not warranted.
After all, Rod Rosenstein was personally involved in drafting (though did not sign) the Barr Memo making a prosecution declination for Trump for his obstruction-related actions. Yet not even Rosenstein, who had been involved in the investigation from the start, thought to address the pardon dangles — a key focus of Volume II of the Mueller Report — that continued to undermine ongoing investigations.
Then, over a year later and under pressure from Lindsey Graham for having signed the worst of the Carter Page FISA applications, Rosenstein agreed with Graham’s false portrayal of the investigation as it existed on August 1, 2017, when Rosenstein expanded the scope of the investigation.
Lindsey Graham: (35:02) I am saying in January the 4th, 2017, the FBI had discounted Flynn, there was no evidence that Carter Page worked with the Russians, the dossier was a bunch of garbage and Papadopoulos is all over the place, not knowing he’s being recorded, denying working with the Russians, nobody’s ever been prosecuted for working with the Russians. The point is the whole concept that the campaign was colluding with the Russians, there was no there there in August, 2017. Do you agree with that general statement or not?
Rod Rosenstein: (35:39) I agree with that general statement.
Rosenstein’s endorsement of Lindsey’s statement about the evidence as it existed in August 2017 was egregiously wrong. Mueller had just acquired a great deal of evidence of conspiracy, including several details implicating Roger Stone and Paul Manafort that were never conclusively resolved. Crazier still, George Papadopoulos had just been arrested for lying to cover up when he learned that Russia planned to help Trump, an arrest of which Rosenstein would have personally had advance notice.
By comparison, days after its release, Rosenstein exhibited great confidence in his knowledge of the 1,400 footnotes his former deputy included in the report.
To be sure, Rosenstein’s defense of Hur did not honestly present the content of the Report. For example, the only other reason he provides for why Hur didn’t charge Biden, besides Hur’s opinion that Biden is a forgetful old geezer, involved the tradition of Presidents taking things home.
ROSENSTEIN: I think so, Jake.
And you identified the controversial elements of the special counsel’s report. It’s a very long report, 345 pages, and has a lot of information in there, other reasons why prosecution would not be warranted. And one of them is the history and experience of prior presidents and potentially vice presidents as well taking home classified documents.
This is simply a misrepresentation of the evidence.
Even if you ignore Hur’s misstatement of DOJ’s application of 18 USC 793(e) in cases where there is no other exposure (in something like a leak) or the challenges in applying it to someone who, like both Biden and Trump, didn’t hold clearance, for the primary set of documents he examined — the two folders of Afghanistan documents found in Biden’s garage — Hur admitted he couldn’t prove his already inventive theory of the case. He couldn’t even prove that the documents in question had been in Biden’s Virginia home when Biden made a comment about something classified in his home.
Rosenstein is, as Hur already did, emphasizing the most unflattering part of the declination decision, not the fact that after blowing over $3M and reading through Joe Biden’s most personal thoughts, Hur simply didn’t find evidence to support a charge.
Twice, Rosenstein disputed that Hur’s focus on Biden’s age was the kind of gratuitous attack for which he had made the case for firing Jim Comey, the second time in direct response to a question about the memo he wrote.
Tapper: I want to read from a memo you wrote in 2017 in which you criticized James Comey’s infamous press conference in which he criticized Hillary Clinton’s handling of classified e-mails, even as he declined to prosecute her, a similar circumstance, although he wasn’t a special counsel — quote — “Derogatory information” — this is you writing — “Derogatory information sometimes is disclosed in the course of criminal investigations and prosecutions, but we never release it gratuitously.
“The FBI director laid out his version of the facts for the news media as if it were a closing argument, but without a trial, it is a textbook example of what federal prosecutors and agents are taught not to do” — unquote. By going to the lengths he did to critique Biden’s age and memory, even as he was clearing him of a crime, how do you differentiate between what Robert Hur did that you say is OK from what James Comey did that you say is not?
ROSENSTEIN: Jake, there are several significant differences between those two examples.
One is, most fundamentally, that Jim Comey wasn’t the prosecutor. He was the head of the FBI. His job was to ensure the police collected the proper evidence, submitted it to the prosecutors. And, ultimately, it’s up to the prosecutors in the Justice Department and the attorney general to make a decision about what information is released.
Rob Hur was the prosecutor. It was his job to make that decision, to make that recommendation to the attorney general, who, as you acknowledged, has previously committed to make this report public. That’s one difference.
The second difference is the special counsel regulation. In the ordinary case, Hillary Clinton was not investigated by a special counsel. There was no procedure to make those reasons public. Here, it’s baked into this regulation.
Now we sit, Jake, 25 years down the road. That regulation was passed by Attorney General Reno in 1999. Now we have 25 years of experience. I think it’s worthwhile to sit back and ask whether or not this is the right procedure. Do we really think that we ought to have prosecutors writing reports for public release of everything they discover and all the reasons for not prosecuting?
Or is there a better way to do that without having all the embarrassing information come to public light?
The big tell in Rosenstein’s defense of his former deputy, though, is his suggestion there’s a comparison between Hur’s attacks on Biden’s age with what Mueller — under the direction of Rosenstein and Hur — included in his report, which spent far fewer pages laying out the prosecutorial analysis for far more potential criminal exposure by Trump.
The second issue is what you release in the public. And the problem here with — that’s really baked in the special counsel model is that it’s not really the function of a prosecutor to publicly announce the reasons why they’re not prosecuting.
And so when you layer that into the process, it can result in unfortunate consequences. The Donald Trump report, I think, got people upset in the same way that this one did.
Given his inclusion of Independent Prosecutor Lawrence Walsh here, Rosenstein’s comparison is insane, because he left out the Ken Starr Report (to which investigation, he reminded Tapper, he contributed), which included the most gratuitous descriptions of the subject of the investigation of any of these reports.
Rosenstein’s likening of the Mueller and Hur report is odd for a number of reasons. The part of the Mueller Report focused on Trump was 200 pages, far shorter than the Hur Report yet covering far more overt acts.
Mueller made absolutely no complaint that both Trump and his failson refused to appear before a grand jury whereas Hur’s attacks arose out of Biden’s willingness to sit for several days of a voluntary interview. Mueller let Trump’s decision to invoke the Fifth stand without ascribing criminal motive; Hur made Biden’s cooperation into cause for attack.
But even in smaller details, the reports don’t compare. One thing Hur made up, for example, is that Biden might have alerted his attorneys that there were classified records (in a ratty beat up old box) in his garage, but his team couldn’t find out because if they asked, the answer would be privileged.
We considered the possibility that Mr. Biden alerted his counsel that classified documents were in the garage, but our investigation revealed no evidence of such a discussion because, it if happened, it would be protected by the attorney-client privilege.
This claim only appears in the Executive Summary, where lazy journalists might find it. It appears nowhere in the body of the report (which has to deal with the fact that if Biden had really brought these documents home, he wouldn’t have so willingly let his attorneys search for them). It’s one of the things Biden’s attorneys asked to be corrected.
There are a number of inaccuracies and misleading statements that could be corrected with minor changes:
- ‘We considered the possibility that Mr. Biden alerted his counsel that classified documents were in the garage but our investigation revealed no evidence of such a discussion because if it happened, it would be protected by the attorney-client privilege.” Report at 22. In fact, your investigation revealed no evidence of such a discussion because it did not happen–not because of any privilege. The President testified he was unaware that there were any classified documents in his possession. Tr., Day II, at 2, 41-42. You did not ask him in his interview or in the additional written questions if he had “alerted his counsel” about classified documents; if you had, he would have forcefully told you that he did not.
Hur’s decision to fabricate the possibility of an attorney-client conversation that did not happen — and his obstinate refusal to correct it — is especially telling given Mueller’s hands-off treatment of attorney-client privilege.
For example, Mueller didn’t even try to ask Jay Sekulow about his role in drafting Michael Cohen’s false claims about the Moscow Trump Tower, even though Cohen said Sekulow was involved.
The President’s personal counsel declined to provide us with his account of his conversations with Cohen, and there is no evidence available to us that indicates that the President was aware of the information Cohen provided to the President’s personal counsel. The President’s conversations with his personal counsel were presumptively protected by attorney-client privilege, and we did not seek to obtain the contents of any such communications.
Nor did Mueller attempt to interview John Dowd about whether he left a threatening voicemail for Mike Flynn’s then-attorney Rob Kelner, to find out whether Trump directed Dowd to make the threat.
Because of attorney-client privilege issues, we did not seek to interview the President’s personal counsel about the extent to which he discussed his statements to Flynn’s attorneys with the President.
In both cases, Mueller let privilege close off investigation into more egregious evidence of obstruction.
So where Mueller let Trump hide behind attorney-client privilege as a shield, Hur flipped that, and used a fabricated attorney-client conversation as a shield to insinuate evidence of guilt where none existed.
In short, Rosenstein went on teevee and made a bunch of cynical claims, defending Hur’s attack on Biden even while claiming that the Mueller Report was just as damning.
As I and others contemplate how Merrick Garland made such a shitty choice for Special Counsel here, I keep thinking about the fact that there’s a little club of Rod Rosentein associates gunning for the Biden men. There’s Hur, and Rosenstein’s hypocritical and remarkably hasty defense of him.
There’s also the reference that Gary Shapley, who is based partly in Baltimore, made about a prosecutor who became Deputy Attorney General, a reference that can only describe Rosenstein.
Mr. Shapley. No. I think I’ve said it, that this is not the norm. This is — I’ve worked with some great guys, some great prosecutors that went on to be U.S. attorneys and went on to be the deputy attorney general and, I think I have experience enough to where it means something.
After having agreed with the IRS that the case against Hunter Biden couldn’t move forward if Shapley were on the team, David Weiss then decided to appoint two AUSAs who would have worked for Hur and Rosenstein as AUSAs in MD USAO, in the case of Leo Wise, for years.
That is, the cabal of men gunning for Joe Biden and his son — all of whom have already engaged in questionable games — have ties to Rod Rosenstein, who still seems to be trying to make it up to Trump for his role in appointing a Special Counsel.
And Rod Rosenstein, as he demonstrated in that interview, is giving Hur, at least, special license to engage in precisely the kind of conduct for which he endorsed firing Jim Comey.
Judge Mark Scarsi Refuses Accommodations That Trump’s Judges Have Granted
While the judges in former President Trump’s federal prosecutions have been issuing reasonable (in Tanya Chutkan’s case) and unreasonable (in Aileen Cannon’s case) extensions in pretrial deadlines, the judge in Hunter Biden’s Los Angeles case seems intent on keeping a politically damaging trial scheduled for the middle of campaign season, June 20.
Last week, Abbe Lowell requested two accommodations in the pretrial schedule in Los Angeles: first, that he be permitted to hold off filing the four (actually, three) filings fully briefed before Judge Maryellen Noreika that he will also file in Los Angeles: a motion to dismiss based on immunity under the diversion agreement, a selective and vindictive prosecution claim, and a claim that David Weiss was improperly appointed. Lowell also mentioned the constitutional challenge to the gun charge, but that won’t be filed in Los Angeles. At the initial appearance, Lowell said instead there would be one based on “the actions of the IRS agents that were involved.”
Here’s an updated version of my Howard Johnsons-colored table showing how all these cases interrelate, including the filings we should expect in both federal cases; I’ve put an updated version of the eight cases Lowell is juggling below (and have started tracking them here).
Lowell did not mention the as-yet unfiled motion to suppress the laptop he said he’d file in Delaware on January 30. I’ll come back to that.
In addition, Lowell requested a 3-week extension on the initial filing deadline, from February 20 to March 12, for the motions that will be unique to Los Angeles; he did not mention a filing about the IRS agents, but did mention motions on the Statute of Limitations (presumably affecting just the 2016 tax year), venue (possibly affecting both the 2016 and 2017 year), and multiplicity. To justify that, he cited a death in the family of one of the lawyers working on these filings, as well as several other deadlines pending:
- Responses to motions to dismiss in the Garrett Ziegler and Rudy Giuliani lawsuits at the end of the month
- A February 22 hearing in the John Paul Mac Isaac suit and Hunter’s countersuit
- Hunter’s February 28 impeachment deposition in the House
Judge Scarsi denied the motion with no comment.
To be sure, I’m not remotely surprised Scarsi denied Lowell’s motion to hold off on the identical motions already filed in Delaware.
At the initial appearance on January 11, Scarsi raised those filings himself.
[T]he Court has gone through and actually read what’s been filed so far in Delaware. So the Court wanted to come up to speed on the issues [at] play here. And so, we’ve got — at least we’re up to speed in what’s been filed so far.
The parties have spent, it looks like, a lot of time, or will spend time briefing issues in Delaware. And I think that should help us expedite matters here, because it wouldn’t surprise me if some of the same issues raised in Delaware are raised in this Court. In fact, the Court anticipates that happening.
Scarsi even ordered the parties to cut the 70-page filings submitted before Judge Noreika down to something like 20, double his normal limit of 10 pages (the parties have yet to file a stipulation showing that’s what they’ve agreed on).
[T]he parties know from reading the Court’s standing order, the Court’s standing order in criminal contemplates that the page limitations on motions is 10 pages. Motions and oppositions, and replies not necessary.
Now the Court is willing to grant the parties a little leeway here, to exceed the page limits, you know, contemplating doubling them, at most.
Scarsi even recognized that the diversion filing might trigger an interlocutory appeal, because he warned Lowell that the precedent (which he named) governing interlocutory appeals in the Ninth Circuit is fairly limited and directed him to address that issue in his initial filing.
At the time, Lowell knew the briefing deadline before Judge Noreika, and so could have requested to hold those three identical motions at that point.
Plus, it’s not the case that the motions will be identical. The diversion filing in Los Angeles will and always would have been mostly a place-holder; if Noreika rules against Hunter regarding the diversion agreement, then there would be no basis to make the same claim in Los Angeles absent an interlocutory appeal in Delaware. It’s only if she rules for Hunter that Lowell’s claim that the immunity in the gun diversion extends to the tax case would come into play.
The selective and vindictive prosecution filing in Los Angeles will have to swap the comparators showing how no non-violent person in recovery from addiction has been charged with the same gun charges in Delaware with comparators showing that no one who has paid their taxes, much less someone who — Abbe Lowell claims but has not yet shown proof — overstated their income has been criminally charged, with a mention of Roger Stone’s more lenient treatment as well. Lowell mentioned the two tax laws criminally prohibiting the kind of pressure that Trump exercised in Hunter’s case only in passing; they would seem to be far more central here. And given the fact that the US Attorney for Los Angeles, Martin Estrada, was among those threatened as a result of the political pressure on this case, it would seem useful for Lowell to raise the threats elicited by those demanding this prosecution.
Even the Special Counsel challenge could be tweaked given Weiss’ admission to Congress that he has never been subject to the kind of oversight from political appointees that Morrison v. Olson requires. Weiss was already functioning as a Special Counsel before demanding appointment as such, presumably to get the opportunity to write another political hit piece targeting a Biden man (or men).
I’m not even that surprised that Scarsi refused to budge on the schedule. At the initial appearance he not only warned that he likes to move quickly,
Again, if we’re going to move this case either forward or expeditiously, and efficiently — and that’s what this Court likes to do. We like to move things along, because I think it’s better for all the parties and we don’t have things linger.
But Scarsi also suggested that because he set a schedule first, Judge Noreika should now have to accommodate his schedule.
So what I’m going to do is, I’ll go ahead and issue an order with those dates. That will hopefully prevent conflict with Delaware, because this order will be in place and the Court in Delaware will likely be aware of it.
So Lowell was on notice of all of that.
There’s one thing Lowell wasn’t on notice of on January 11, and his request for a delay may be about something other than the motions to dismiss.
Delaware Superior Court Judge Robert Robinson only set the February 22 hearing in the John Paul Mac Isaac lawsuit and Hunter’s counterclaim on February 1 at 8:52 AM. Per Lowell’s declaration and email record, 38 minutes after Robinson set that hearing, Lowell first reached out to prosecutors about this delay (in their dickish fashion, they blew him off for six days).
If Robinson were to rule in Hunter’s favor — if he were to rule that, under Delaware law, JPMI didn’t own Hunter’s laptop when he first offered it up to the FBI on either October 9 (JPMI’s version) or October 16, 2019 (FBI’s), less than a year after someone who may or may not be Hunter Biden dropped it off, if he were to rule that JPMI violated his own promise to protect Hunter Biden’s data, not least by snooping through Hunter’s data well before even he, JPMI, claimed his intake form gave him ownership of the laptop — then it might have fairly dramatic impact on any motion to suppress the laptop.
That’s true, not least, because (if you can believe JPMI and it’s not clear you can), after JPMI sent a hard drive with the data across state lines to his father, the FBI told his father that, “You may be in possession of something that you don’t own.” After which JPMI and his father sent that same data across even more state lines, including to Congress and Rudy Giuliani. And yet rather than opening a criminal investigation into JPMI for interstate trafficking of the potentially stolen data of the former Vice President’s son, David Weiss instead decided to build an entire case around that data.
Worse still, JPMI’s public claims about what he saw in the data are obviously false: of particular note, there are no known emails substantiating his claims that the laptop showed, “information about Ihor Kolomoyskyi and Mykola Zlochevsky, and their involvement in using Hunter and Devon to protect the billions they embezzled from the IMF.” The crime of which JPMI told the FBI they’d find evidence on the laptop was entirely made up — and made up to create a video that might serve Trump’s impeachment defense.
Lowell’s motion to compel — submitted in Delaware two days before that hearing was set — describes receiving “The Mac Shop files.” It doesn’t describe receiving the initial FBI legal review that concluded JPMI and his father likely didn’t own that laptop or data. It doesn’t describe receiving the 302s documenting the FBI’s interactions with JPMI (302s that were also not shown to case agents who might have to testify at trial). If warnings that JPMI didn’t own this data really exist, and if prosecutors are withholding it to cover up real problems with their reliance on the laptop, it would be fairly important evidence.
A favorable Delaware ruling would likely have more impact on the Los Angeles case than anything but a ruling in favor of Hunter’s diversion argument in Delaware, because it would show that David Weiss chose to use poison fruit to investigate Hunter Biden rather than pursue a case of interstate data theft. The SDNY case against those who stole Ashley Biden’s diary and a thumb drive with tax records and photographs on it and trafficked them across state lines shows that such things can be prosecuted.
At the initial hearing, Scarsi told Lowell that the, “February 20th date is for motions that you know now that you intend to bring.” When Lowell said he’d file a motion to suppress the laptop and everything else in Delaware, he pointed to several other things — such as reliance on witness testimony from a Los Angeles grand jury post-indictment and the filing for the warrant itself post-indictment — to get as a basis to suppress. Lowell still hasn’t mentioned a motion to suppress the laptop to Scarsi. He’s likely now trying to determine whether he can and should wait on a ruling from Robinson before he files such a suppression motion to Scarsi, who has promised to rule expeditiously.
It’s not surprising that Scarsi denied Lowell’s request (though it is a telling contrast to the treatment Trump is getting).
But it is also the case that these moving parts really may affect the case before him.
Update: Abbe Lowell has filed a status report in the Delaware case in case Judge Noreika decides she doesn’t want Scarsi to preempt her.
1) Delaware Gun Case (Maryellen Noreika)
September 14: Indictment
October 3: Arraignment
October 12: First Discovery Production (350 pages focused on gun case), including iCloud data and “a copy of data from the defendant’s laptop”
October 13: Motion to Continue
October 19: Order resetting deadlines
November 1: Second Discovery Production (700,000 pages on tax charges — no mention of FARA investigations)
November 15: Hunter subpoena request
December 4: Weiss subpoena response
December 11: Motions due
- Selective and vindictive
- Immunity from Diversion
- Constitutional
- Special Counsel Appointment
- Discovery
December 12: Hunter subpoena reply
January 9: Third Discovery Production (500,000 pages focused on tax case)
January 16: Responses due
- Selective and Vindictive
- Immunity from Diversion
- Constitutional
- Special Counsel Appointment
- Discovery
January 30: Replies due
- Reply, Selective Prosecution
- Reply, Diversion Agreement
- Reply, 2A Constitional
- Reply, SCO Appointment
- Reply, Discovery
January 30: Motion to compel
2) Los Angeles Tax Case (Mark Scarsi)
Hunter was indicted on December 7 and made a combined arraignment/first appearance on January 11. At that hearing, Judge Mark Scarsi set an aggressive (and, from the sounds of things, strict) schedule as follows:
February 20, 2024: Motions due
March 11: Response due
March 18: Replies due
March 27 at 1:00 p.m.: Pretrial motion hearing
April 17: Orders resolving pretrial motions.
June 3 at 1:00 p.m.: Status conference
June 20: Trial
3) House Dick Pic Sniffing (James Comer and Jim Jordan)
November 8: James Comer sends a pre-impeachment vote subpoena
November 28: Lowell accepts Comer’s offer for Hunter to testify publicly
December 6: Comer and Jordan threaten contempt
December 13: Pre-impeachment deposition scheduled; Hunter gives a press conference and states his data has been “stolen” from him
December 13: Impeachment vote authorizing subpoena
January 10: Oversight and Judiciary refer Hunter for contempt
January 12: Lowell invites Comer and Jordan to send another subpoena, now that they have the authority to enforce it
January 14: Jordan and Comer take Lowell up on his invitation
February 28: Deposition
4) IRS Lawsuit (Tim Kelly)
September 18: Privacy Act lawsuit
November 13: DOJ asks for extension to January 16
January 16: DOJ files motion for partial dismissal
January 23: Joint motion to continue
January 30: Original deadline for Hunter response
February 5: Amended complaint
February 9: DOJ asks for delay for response from February 20 to February 27
5) John Paul Mac Isaac’s Suit and Hunter’s Countersuit (Robert Robinson)
Last summer, John Paul Mac Isaac and Hunter both sat for depositions, on May 31 and June 29, respectively.
Last fall, Hunter Biden subpoenaed people like Rudy Giuliani, Robert Costello, Steve Bannon, Yaacov Apelbaum (who made a copy of the contents of the laptop), Tore Maras (who has described adding things to the laptop). In November, Hunter also served a subpoena on Apple.
On January 4, the parties to John Paul Mac Isaac’s suit and countersuit filed to have their pending motions decided by a judge. The media defendants — CNN and Politico — are filing to dismiss. Hunter and JPMI filed competing motions for summary judgment.
And Hunter is filing to quash a bunch of subpoenas, initially 14, to Hunter’s parents, uncle, ex-wife, former business partners, and several people with his father, like Ron Klain and Mike Morell. Though after that, JPMI attempted to subpoena Hunter’s daughters.
Since then, Judge Robinson stayed John Paul Mac Isaac’s subpoenas and scheduled hearings in the Motions to Dismiss (from CNN and Politico) and Motions for Summary Judgement (from Hunter and JPMI) for February 22.
6 AND 7) Hacking lawsuits against Garrett Ziegler and Rudy Giuliani (Hernan Vera)
[RECAP Ziegler docket; RECAP Rudy docket]
September 13: Complaint against Ziegler
September 26: Complaint against Rudy and Costello; noticing Ziegler suit as related case
November 15: Ziegler gets 30 day extension
December 1: Costello gets 30 day extension
December 7: After swapping attorneys, Ziegler gets extension to December 21
December 21: Ziegler motion to dismiss and request for judicial notice (heavily reliant on JPMI suit)
January 17: Costello motion to dismiss with Rudy declaration that makes no notice of his fruit and nuts payments relating to Hunter Biden
January 22: Lowell successfully requests to harmonize MTD hearing for both hacking lawsuits
February 8: Rescheduled date for hearing on motion to dismiss
February 22: Rescheduled date for hearing on motion to dismiss
End of February: Response to motions to dismiss due
March 21: Joined date for hearing on motion to dismiss
8) Defamation against Patrick Byrne (Stephen Wilson)
November 8: Complaint
January 16: After swapping attorneys, Byrne asks for 30 day extension
February 6: Rescheduled response date