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Hunter Biden’s Delayed Email Access on the JPMI Laptop

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In both a footnote of his reply motion for discovery …

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

And two footnotes in his motion to compel …

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

[snip]

18 Citing District of Delaware Search Warrant No. 23-507M. Unlike the Office’s prior search warrants during the five-year investigation that were for tax, financial, or foreign-business related offenses, this warrant was specifically for offenses pertaining to 18 U.S.C. §§ 922, 924 (firearms offenses). See supra n.3, and a further motion to suppress concerning this December 4, 2023 search will be forthcoming. [my emphasis]

Hunter Biden attorney Abbe Lowell said he would soon be filing a motion to suppress “improperly gathered evidence.”

Part of this will likely be a challenge to the belated pretextual testing of the gun for cocaine residue without also testing for fingerprints and dating of the residue to the time period immediately after Hunter purchased a gun.

But in all three footnotes, he promises to challenge the December 4, 2023 warrant, which would implicate the original search warrant to Apple, the exploitation of the laptop, and follow-on searches for four devices backed up to his iCloud:

  • iPhone X (Apple Backup 1)
  • iPhone 6S (Apple Backup 3)
  • iPad Pro (Apple Backup 4)
  • iPhone XR (Apple Backup 11)

After over three years of controversy about the laptop attributed to Hunter Biden, this challenge may finally unpack the reliability of the device that has driven right wing frothers nuts ever since.

Game on!

There’s a variety of things that Lowell might rely on to challenge the use of the laptop — and possibly, the four backed up devices, as fruits of the laptop — some sound and some less so. They include:

  • A complaint that David Weiss used testimony obtained from a Los Angeles grand jury focused on tax crimes to obtain the December 2023 warrant, which will almost certainly be dismissed as normal prosecutorial dickishness.
  • If any of the devices entirely predate 2018, there should be no probable cause to search them for the 2018 charges. Based on emails available at BidenLaptopEmails dot com, Hunter Biden started using at least three different iPhone Xes in 2018 (but at least one of those was likely lost to hostile people). He had an iPhone 6S with the droidhunter account he used to access adult entertainment in early 2019, though the only known iPhone XR may have been tied to that account, rather than his Rosemont Seneca account (or there could be a later one). Otherwise, his iPhone 6S use appears to have significantly predated 2018. An iPad backed up to the laptop is an iPad Pro, which itself dates to 2016, and much of Hunter Biden’s known iPad Pro use was also in 2016 and earlier, which is the time frame investigators were most interested when they obtained those warrants.
  • The fact that, per Gary Shapley’s notes, the FBI never validated when the files loaded onto the laptop were added to it in the first 10 months they used it (which also means they did not do so before obtaining four backup devices partly relying on it).
  • John Paul Mac Isaac’s acknowledgment that when his father first went to the FBI, the FBI agent with whom he spoke advised, “you should get a lawyer [because] You may be in possession of something you don’t own.”
  • JPMI’s description that the FBI was trying to boot up the laptop on December 9, 2019, before the FBI had the December 13, 2019 warrant.
  • The fact that the Attorney General’s Chief of Staff texted the Attorney General that he was sending him a laptop the day after the FBI obtained the known December 13, 2019 warrant, suggesting the laptop may have been used for something else, like potential impeachment defense.
  • Also per Shapley’s notes, that some of the means FBI used to determine the laptop was once associated with Hunter’s iCloud account — including call and email traffic with John Paul Mac Isaac and a cigar purchase made locally the day of the drop-off — could easily be spoofed by anyone in possession of the laptop.
  • The fact that, for two and a half months by the time the FBI claimed to have validated that the laptop was Hunter Biden’s, they had had full access for Hunter’s iCloud (and almost certainly had access to Hunter Biden’s Rosemont Seneca Google account for at least that long), which would have given them full access to a bunch of metadata that very much should have raised concerns about who had control of Hunter’s devices at any given time.

Those are just some of the potential bases for a Fourth Amendment challenge to using the laptop as evidence. There may be more.

It’s the last bullet that I want to focus on here. Shapley’s notes show that on November 6, 2019 — over a month after obtaining Hunter’s full iCloud account on September 25, 2019 — Josh Wilson used the serial number provided by JPMI and “determined that device was registered to [Hunter Biden] via apple ID account/iCloud account.”

It is absolutely the case that at 8:50AM Delaware time on October 21, 2018 — nine days after Hunter bought a gun and two days before he no longer possessed it — the laptop that would eventually end up at the FBI logged into Hunter’s iCloud account, though unlike some devices before and after, there’s no public confirmation of a tie to Apple directly, such as Apple welcoming him to a new computer or a receipt.

But there’s something unusual about what came next.

Normally, when Hunter Biden started using one of the new devices that can be clearly tied to his account, he would log into iCloud, then shortly thereafter log into one or another of his two Google accounts, Rosemont Seneca and/or droidhunter. As a result, Google would send security alerts to both the Gmail account and a whichever of the iCloud emails were set as backup.

For example, after Hunter bought a new laptop (possibly the laptop found at Keith Ablow’s in March 2019) on August 31, 2018, he signed into his iCloud account the next day, then, also on September 1, signed into his droidhunter Gmail account, then into his Rosemont Seneca account on September 2.

Someone signed into one of his new replacement iPhones, ordered through Asurion, on October 14 and then, on October 17, signed into his Rosemont Seneca Gmail account.

Someone signed into a new iPhone 8 Plus on October 23, 2018 — possibly the other replacement phone from Asurion — and then signed into his Rosemont Seneca Gmail account that same day.

Things are a bit fuzzier with some phones replaced through Apple the next spring, after his life was packed up on a laptop for delivery to John Paul Mac Isaac.

On February 21, 2019, he got a new iPhone, associated with his droidhunter account, and signed in on his droidhunter Gmail right away.

On March 1, 2019, he got a new iPhone XR — possibly the one obtained with the 2020 warrant. Then bought an adult themed App on March 7, then signed into his droidhunter email on March 9.

There are an astounding number of other devices used to log into one or another account associated with Hunter Biden’s digital life. But for recognizable device replacements, the pattern generally holds: Sign into Apple, then sign into Google.

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.

New Mac devices also accessed Hunter’s Rosemont Seneca account on February 9 and February 20, 2019.

As I’ve already described, a great deal of Hunter Biden’s “normal” activity on his devices in this period looked like he was hacking himself. For example, on at least 36 occasions in 2017 and 2018, Wells Fargo shut down Hunter’s online access because of activity that looked, to it, like a hack. Many if not most of that was probably, instead, just Hunter Biden doing erratic things. In other cases, it’s impossible without more data to show whether a particular access or expenditure was Hunter himself, someone who had acquired one of his devices, or someone more malicious.

But there is a pattern, and the laptop ultimately shared with the FBI, he deviated from that pattern.

Certainly, David Weiss might argue that the FBI just hadn’t looked at Hunter Biden’s digital fingerprints that closely when they got a warrant on December 13, 2019.

But they’ve had five years to look at it in the interim period, and might have a harder time arguing that this pattern was normal.

Update: Just catching up to the Delaware docket (JPMI’s suit and Hunter’s countersuit). Judge Robert Robinson will hold hearings in everyone’s motions on February 22.

Update: Abbe Lowell has amended his lawsuit against the IRS, tweaking it to make statements that lawyers for Joseph Ziegler and Gary Shapley made. He told Mark Scarsi had had some motion regarding the disgruntled agents, so I expect this filing will be cited in that motion.

Abbe Lowell Already Accused David Weiss of a Brady Violation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A Sure. I have safety concerns for everybody who has worked on the case, and we want to make sure that folks — yeah, folks are encouraged to do what they need to do with respect to the pursuit of justice generally and they not be intimidated in any way from performing their responsibilities.

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

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

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

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

Q Do you have concerns for your safety or that of your family because of these threats?

A You know, I’m not — for myself, I’m not particularly concerned. Certainly I am concerned, as any parent or spouse would be for — yeah, for family, yep.

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

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

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

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

The Hunter Biden Laptop: Two CARTs before the Horse

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According to the property receipt that has been posted publicly (but not, as far as I know, been made available as separate PDF), FBI Special Agent Josh Wilson signed the receipt for a hard drive and laptop obtained from John Paul Mac Isaac. The date is obscure, but consistent with receipt on December 9, 2019.

The admittedly inconsistently dark case file on that form, as right wing frothers never tire of pointing out, is a money laundering case file, 272D-BA-3065729.

According to the warrant return I liberated this week, on December 13, 2019, Josh Wilson received the hard drive and laptop again. He received the laptop not from an evidence locker, where it might normally go while an agent gets Office of Enforcement Operations approval and then gets a warrant from a magistrate judge, but from a Computer Analysis Response Team (CART) Computer Analyst named Mike Waski.

The warrant I liberated is not for money laundering. The only crimes listed on Attachment B are tax crimes: 26 USC 7201, 26 USC 7203, and 26 USC 7206(1).

According to the notes Gary Shapley took after it became clear that, after sharing the laptop with the FBI, John Paul Mac Isaac shared a copy with Rudy Giuliani, after Josh Wilson took possession of the hard drive and laptop (a second time), the hard drive, at least, went back to CART — this time, a CART Agent named Eric Overly.

In spite of the fact that Shapley made these notes in order to explain precisely what happened with the laptop, Shapley doesn’t mention where the laptop was between December 9, 2019, when Josh Wilson took possession from JPMI and December 13, 2019, when Josh Wilson took possession again.

Joseph Ziegler returned the warrant on January 30, 2020. But it wasn’t until March before the FBI got an image of the laptop (though this may have been after a filter team review). Josh Wilson got that personally, too.

Putting two carts before the horse is not normal, here. When the FBI accepts a laptop, even if it is being used in multiple investigations, they image it once and then — as ultimately happened here, probably multiple times — they obtain new warrants for the same device, first for the tax investigation, then for a FARA investigation, and finally, 81 days after indicting the President’s son for gun crimes, for a gun investigation.

But this laptop, Hunter Biden’s laptop, went from the blind computer repairman to Josh Wilson to CART to Josh Wilson and then back to CART.

I currently have theories why that happened. But no answers.

I’ve asked David Weiss’ spox for clarification about zscoreUSA’s observation: why the caption for the warrant obtained last month lists a different device serial number for the laptop:

Then the laptop for the actual laptop obtained from JPMI, which is what appears in the Attachments that were only released pursuant to Judge Maryellen Noreika’s orders after I made some follow-up calls.

The serial numbers are just off by two characters:

  • FVFVC2MMHV2G
  • FVFXC2MMHV29

David Weiss’ spox hasn’t acknowledged that inquiry. This could be a typo or, as was suggested, FBI Agent Boyd Pritchard may have used the serial number for a laptop into which (as Shapley described) FBI dropped the removable hard drive from the laptop obtained from JPMI. In that case, it would normally note that the laptop contained the hard drive liberated from a prior laptop.

Perhaps all this will get sorted if and when Abbe Lowell makes good on his promised suppression motion. But until then, I only have theories, not answers.

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

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

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

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

[snip]

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Chessboard(s): Hunter Biden’s Replies

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

Motions to dismiss

Information collection motions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Hunter Biden Reply Motions to Dismiss

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

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

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

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

In addition, Abbe Lowell filed a motion to compel.

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

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

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

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

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

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

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

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

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

August 29, 2019: Original iCloud warrant; warrant return

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

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

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

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

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

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

2 District of Delaware Case No. 19-234M

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

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

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

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

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

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

December 13, 2019: Original laptop warrant; warrant return

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

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

4 District of Delaware Case No. 19-309M

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

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

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

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

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

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

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

The iCloud warrant describes it this way:

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

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

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

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

Bookmark that detail.

July 10, 2020 iCloud warrant; warrant return

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Updated with the AB Attachments from the most recent warrant.

Update: Corrected my reference to Matt/Mike.

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

The Post-Indictment Hunter Biden Warrant Included the Laptop

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The Delaware District Court has started unsealing the dockets Judge Maryellen Noreika ordered unsealed last week.

Remember how I said that getting a new warrant to parallel construct evidence already obtained wouldn’t cause a problem, but misleading a judge might?

Well, this is the kind of thing that might cause a problem.

Here’s how Derek Hines described the post-indictment warrant.

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

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

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

4 District of Delaware Case No. 19-309M

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

That led me to believe that the warrant targeted only Hunter’s iCloud content.

It was broader than that. It also targeted the laptop itself.

Here are the RECAP links to the dockets that will, eventually, include the warrants.

August 29, 2019: Original iCloud warrant; warrant return

December 13, 2019: Original laptop warrant; warrant return

July 10, 2020 iCloud warrant; warrant return

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

Update.

Oh. Here’s the search warrant return for the warrant obtained in December.

The FBI Agent didn’t sign the search warrant return until … oh! Today!

New WaPo Boss, Will Lewis, Brags about Dick Pic Sniffing that Fails to Correct Past Errors

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In a predictably solicitous interview between Ben Smith and the new publisher of WaPo, Will Lewis, Smith asked Lewis how the WaPo has escaped “becoming the kind of partisan brand that others have.”

Do you think the Post has escaped becoming the kind of partisan brand that others have?

For those that read our brilliant opinion section, if you read our news, if you read our Hunter Biden art sales story yesterday; if you read our balanced and incredibly interesting coverage about Trump-Haley; if you do that, then you will know that we are the most objective news organization in America and we have the most balanced, diverse opinion section where we have opinions from all sorts of people. It’s like an oasis of calm and considered thought.

The very first story that Lewis boasted about was this Matt Viser story, largely simple regurgitation of the publicly-released transcripts of the Georges Bergès and Kevin Morris transcripts.

Viser describes the cost to Bergès’ business of the scandal (while Viser mentions Bergès’ comments about politics, he doesn’t mention that the guy likely being threatened by Trump supporters described financially and electorally supporting Trump).

Bergès said that while he and Biden have become friendly, he let the contract lapse last year. “From a business perspective, it hasn’t been the best decision for me,” Bergès said, citing security issues, death threats and assumptions about his political affiliations.

“It was a little bit more than I could chew, that obviously I kind of wanted my life back,” he said.

He also describes that an earlier story of his, which largely created this scandal, came up repeatedly.

Bergès was asked numerous times during his interview about White House involvement in his arrangement with the Georges Bergès Gallery as first described by The Washington Post in July 2021. The Post reported that White House attorneys, concerned about potential ethical issues, urged that any buyers of Hunter’s paintings be kept confidential, a practice that was adopted.

Bergès testified that he never spoke with anyone from the White House, and claimed that he was surprised to read reports about the arrangement. At the time, he did not respond to phone and email messages from The Post, but a person who said she was calling on behalf of Bergès confirmed to The Post that all sales would be kept secret from Hunter Biden.

What Dick Pic Sniffing Matt Viser doesn’t reveal, however, is that Bergès debunked a key premise of Viser’s earlier story: that he was selling Hunter’s art for up to $500,000 a painting. That claim appeared in the lede and — directly attributed to Bergès — several paragraphs into the story. That price tag is the basis of Richard Painter’s concerns about the deal and art critic Marc Straus’ complaints about the prices.

White House officials have helped craft an agreement under which purchases of Hunter Biden’s artwork — which could be listed at prices as high as $500,000 — will be kept confidential from even the artist himself, in an attempt to avoid ethical issues that could arise as a presidential family member tries to sell a product with a highly subjective value.

[snip]

But the arrangement is drawing detractors, including ethics experts as well as art critics who suggest that Hunter Biden’s art would never be priced so high if he had a different last name. Bergès has said that prices for the paintings would range from $75,000 to $500,000.

“The whole thing is a really bad idea,” said Richard Painter, who was chief ethics lawyer to President George W. Bush from 2005 to 2007. “The initial reaction a lot of people are going to have is that he’s capitalizing on being the son of a president and wants people to give him a lot of money. I mean, those are awfully high prices.”

[snip]

Although some art critics have praised Hunter Biden’s art, several contacted by The Post found the asking prices of $75,000 to $500,000 hard to justify.

Marc Straus, who for the past decade has owned a gallery on the Lower East Side of Manhattan, said that among high-end art dealers, “nobody would ever start at these prices” for someone who has no professional training and has never sold art on the commercial market.

“There has to be a résumé that reasonably supports when you get that high,” Straus said. “To me, it’s pure ‘how good is it and what’s this artist’s potential, what’s the résumé?’ On that basis, it would be an entirely different price. But you give it a name like Hunter Biden, maybe they’ll get the price.”

[my emphasis]

What Viser didn’t bother to tell readers, though, is that claim — that Bergès was selling these paintings for up to $500,000 — was debunked in the transcript.

Mr. Bishop. The Washington Post article that’s marked as exhibit number 3, have you read that before?

Mr. Bergès. Which one’s that?

Mr. Bishop. Do you have the article?

Ms. Forrest. H, I think.

Mr. Bergès. H? I’ve never read that before.

Mr. Bishop. It says in the one, two, three, four, fifth paragraph, the concluding 10 line says, “Bergès has said that prices for the paintings would range from $75,000 to $500,000.” Is that false?

Mr. Bergès. Yes.

Mr. Bishop. Did you ever say that?

Mr. Bergès. I don’t recall ever saying that.

Mr. Bishop. Okay.

Mr. Bergès. I know that there was an article from the Artnet that came out and said that and I don’t know if it was my publicist who had said that or I don’t know where that number came from. But I do remember having conversations with my publicist and asking how in the heck did they come out with that number because I didn’t have anything for $400,000, $500,000, or $300,000. The price range was pretty realistic. I mean, it’s not — if you looked at a New York Post article that I can recall where they had an art critic say this prices should be around 40 to $85,000 from his professional opinion and it was the Post.

So but there was nothing above 3, 4, 500. So that was inaccurate. [my emphasis]

It was debunked not just in Bergès’ denial. But it was debunked in the prices for the artwork described in the testimony. The prices at which Bergès had sold Hunter’s paintings by the time of that story were $13,000 and $75,000; Kevin Morris testified to spending $40,000 on two paintings before that.

Sure, Viser didn’t totally invent this false claim, as he has some false claims in the past. But he also admits, both in the original and this updated story, that he never spoke to Bergès personally.

His error, however unintentional, mainstreamed the claim that Hunter Biden was getting rich off inflated prices for artwork. It manufactured the idea that people were going to launder money to the Biden family through Bergès.

And Viser didn’t even mention that Bergès refuted that claim. Viser didn’t mention that a key premise of this entire scandal, a premise largely mainstreamed thanks to his own story, was wrong.

This wrong premise did direct harm to Bergès’ business and his life (to say nothing of Hunter Biden’s). And WaPo doesn’t even have the good grace to admit that it was an error.

This was a manufactured ethical scandal, and WaPo won’t even admit to the erroneous premise behind the scandal that they created.

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