Posts

The Zombie Case against Trump’s Indicted Co-Conspirators

/25 Comments/in , , /by

Jack Smith signed the motion to dismiss the January 6 case against Trump, but his appellate lawyer, James Pearce, (digitally) signed the parallel request before the 11th Circuit.

Who knows whether that means anything.

But now that Smith has committed to sustaining the appeal of Judge Aileen Cannon’s decision as it applies to Walt Nauta and Carlos De Oliveira, someone needs to take over the case and write the reply, which is due on December 2. Pearce has done the primary work for all Jack Smith’s appeals and so could do so here — or, perhaps Jack Smith will close up shop, along with Pearce, and let Solicitor General Elizabeth Prelogar take over before she’s replaced by John Sauer in January.

One way or another, there’s likely to be a transfer of the Zombie case back to DOJ, where it will be suffocated with pillows never to be heard from again.

The decision to sustain the Nauta and De Oliveira case just long enough for Trump to shut down next year has certain ramifications I only touched in passing in this discussion with Harry Litman about what we might get in a report from Jack Smith, which is probably more accessible than this post about what declination decisions we might see (transcript here).

First, they’ve got due process rights. Meaning, you can’t say anything in a report that might endanger their ability to get a fair trial (a trial they’ll never face, of course). That may lead to redactions of the sort we saw in the original Mueller Report but which were re-released under FOIA. Or it may lead prosecutors to gloss certain things — such as the obstruction — in the report. In the chat with Litman, I noted that ABC reported that Walt Nauta and Trump went back to Mar-a-Lago after hiding documents from the FBI, which might make the report. But if it appears in there, it would need to be presented in such a way to protect Nauta’s due process rights.

It’s possible, even, that until the appeal, DOJ would avoid describing the investigative steps taken in the documents case after Smith was appointed in November 2022. The logic of Cannon’s opinion basically wiped out all that investigative work. Poof. Though it’s possible that Julie Edelstein and David Raskin — who left Smith’s team in October — have done something to recreate some of the work, such as the declassification that had happened in advance of an imagined Florida trial.

Meanwhile, sustaining the case against Nauta and De Oliveira creates an interesting dilemma for DOJ that may have repercussions for others and Trump’s DOJ going forward: how to get rid of the appeal. He would pay least political capital by just dismissing the appeal. But that would reflect a DOJ stance that Jack Smith was unconstitutionally appointed — something that might bind DOJ going forward (as if Pam Bondi won’t just pick Trumpy US Attorneys to do her dirty work like Bill Barr did) — though that may be unavoidable if Trump’s Solicitor General and Deputy Attorney General had both argued that Smith was unconstitutionally appointed, as they have.

But that would go some way to arguing that David Weiss’ appointment as Special Counsel is unconstitutional as well. It might give Hunter Biden, if his father doesn’t pardon him (and Alexander Smirnov, if he is convicted next month and not pardoned) cause to enjoin Weiss’ prosecutors from publishing a report; it would also make Hunter’s appeal of his charges far easier, especially in Los Angeles, where Weiss is not the confirmed US Attorney.

Which may be why (as both Litman and I suggested) Trump might want to pardon Hunter — to give the air of magnanimity to unintended consequences of his efforts to kill the case against him. To say nothing of the transparency into Trump’s first term that Hunter might get if he succeeds with his other appeals.

The case against Nauta and De Oliveira will be dead, one way or another, in two months. But until then, it’ll exist as a Zombie, having potentially unanticipated consequences.

Update: The full Jack Smith team has submitted its reply brief.

David Weiss Dons His “Let’s Go Brandon” Frame

/13 Comments/in , , , /by

In a bid to defeat a motion in limine from Alexander Smirnov prohibiting mention of his nine lawfully owned guns, David Weiss’ prosecutors revealed that they only want to use the guns, if necessary, to prove ownership of other things found in a search of Smirnov’s home, including an anti-Biden hat.

On February 21, 2024, after securing a search warrant signed by United States Magistrate Judge Brenda Weksler, FBI agents executed a search of the defendant’s residence in Las Vegas. During the search, agents found nine firearms. Agents also found other items, including electronic devices, and other evidence, such as a hat emblazoned with an anti-Public Official 1 euphemism. These items are directly relevant to the charges in this case. For example, the government plans to introduce communications found on the defendant’s electronic devices that similarly evidence bias again Public Official 1. And the hat seized from his residence demonstrate the same bias, which bears on the defendant’s motive in providing the FBI with false derogatory information about Public Official 1, who was a candidate for President of the United States, in the months leading up to the 2020 election.

On one level, by all means, show us Alexander Smirnov’s Let’s Go Brandon hat! It’ll work wonders in Los Angeles!

On another level, I can’t help but think that David Weiss’ team has just given Smirnov (who might well get a pardon anyway after Trump is inaugurated) a case for selective prosecution.

Smirnov, recall, is accused of lying to the FBI and in so doing causing the filing of a false report.

But these very same prosecutors — Derek Hines and Leo Wise — were in the last year faced with witnesses with an anti-Biden bias, the guy who sold Hunter Biden a gun in 2018 and the Delaware cop who first spoke to the gun shop owners, the former of whom (according to a filing from Abbe Lowell) similarly caused a false document to be filed, the gun purchase form to which his staffer belatedly added a claim that Hunter had provided a second form of ID when he purchased the gun. Hines and Wise have not charged those people, even though they reportedly sent WhatsApp texts during the 2020 election in an effort to publicize the gun purchase, the same kind of biased messages that Hines and Wise intend to submit to prove their case against Smirnov.

It also reveals a now-exposed attempt by the gun store to fabricate a false narrative about the gun sale. Palimere said the addition of the seller transaction serial number (“5,653”) may have been added on October 26, 2018. (TAB 4, Palimere FD-302 at 4). He said the vehicle registration reference was added in 2021. Yet, the government provided WhatsApp communications from October 2020 and February 2021 between Palimere, friends of his, and then-Delaware state trooper Vincent Clemons3 (see TABs 6 – 6C), all of which refer to the form, a plan to send it to others, needing to get their stories straight about what occurred in 2020, and wanting the gun sale issue and the form exposed during the Presidential campaign.

3 Not to be lost is the fact that Clemons was the Delaware State Police officer who first arrived at Janssens’ grocery store on October 23, 2018 when Hallie Biden threw a bag containing the handgun into a trash can in front of the store. It was Clemons who took statements about the handgun from both Hallie and Hunter Biden and was part of filling out an official police report on the issue. Two years later, he is in the communications with Palimere about the Form 4473, one of which states: “Yep your side is simple – Hunter bought a gun from you, he filled out the proper forms and the Feds approved him for a purchase.” (emphasis added). Palimere later responded, “I’ll keep it short and sweet as well: Hunter bought a gun. The police visited me asking for verification of the purchase and that’s all I can recall from that day. It was over 2 years ago.” (TAB 6B, 10/26/20 Palimere-Clemons Texts at 4, 6.) The reference to filling out the “proper forms” is not lost on defense counsel given what transpired thereafter. And, despite the importance of Clemons (e.g., the person who actually took the statements), the Special Counsel is foregoing him as a witness to call two other Delaware officers instead.

I’m at a loss to imagine how Hines and Wise would distinguish the doctored gun form from the FD-1023 from Smirnov they claim is false. Both were an effort to criminalize the Biden family during the 2020 election. If anything, the retroactively doctored gun purchase form was more dangerous. And yet Hines and Wise charged Smirnov but didn’t charge the gun shop owner. Indeed, they successfully buried precisely the kind of texts showing bias they want to use against Smirnov.

This apparent double standard regarding doctored forms comes even as prosecutors are trying to prevent Smirnov from invoking Hunter’s failed plea hearing to claim (falsely) that Hunter got a sweetheart plea deal. In a filing signed by Wise, prosecutors claim that Smirnov was not mentioned at Hunter’s failed plea hearing, and so he would have no evidentiary reason to rely on the transcript.

[C]ontrary to the defendant’s representation, in the 110 pages of transcript attached to his motion, there is not a single reference to (1) the defendant or this prosecution, (2) “the sitting President,” (3) any accusations against the defendant, (4) the defendant’s “loyal service” to the FBI, or (5) that the defendant was a “Russian Spy.”

I asked Weiss’ spox whether Leo Wise was really claiming that Smirnov went unmentioned. “We will decline to comment beyond our statements and filings in court,” he replied.

But when Leo Wise responded to Judge Maryellen Noreika that, yes, even though Hunter Biden had been assured a month earlier there was no ongoing investigation, that there was in fact was an ongoing investigation,

THE COURT: All right. So you said there might be additional charges. Are you at liberty to tell us what you’re thinking those might be or is that just a hypothetical that there might be?

MR. WISE: It was a hypothetical response to your question.

THE COURT: Is there an ongoing investigation here?

MR. WISE: There is.

THE COURT: May I ask then why if there is we’re doing this piecemeal?

MR. WISE: Your Honor may ask, but I’m not in a position where I can say.

And then said he could still charge FARA violations,

MR. WISE: So I can tell you what I think we can’t charge. I can’t tell you what the ongoing investigation is. So, for instance, I think based on the terms of the agreement, we cannot bring tax evasion charges for the years described in the factual statement to the Plea Agreement. And I think we cannot bring for the firearms charges based on the firearm identified in the factual statement to the Diversion Agreement.

THE COURT: All right. So there are references to foreign companies, for example, in the facts section. Could the government bring a charge under the Foreign Agents Registration Act?

MR. WISE: Yes.

And then got Special Counsel status that would only be required if Weiss were pursuing something implicating Joe Biden — like Smirnov’s bribery claim — he almost certainly was invoking Alexander Smirnov.

Wise made that claim even while Smirnov was still fighting to obtain material on David Weiss’ decision to chase the Smirnov allegation (there was a hearing on this yesterday, but nothing is docketed on it yet).

The Defendant requested communication related to the request that U.S. Attorney David Weiss’s team “assist” with “an investigation of allegations” related to the FD-1023. The government refuses to produce this material and ignores that fact that the government chose to include the following language in the Indictment: “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.” Accordingly, not only did the government, in its Indictment, place the communications at issue, it is clear that the communication are relevant and discoverable. This request has been outstanding since March 5, 2024.

And the apparent double standard comes as Smirnov is attempting to put the conduct of Smirnov’s FBI handler — the guy who didn’t take alarm when Smirnov sent him already debunked Fox News disinformation — at issue.

The dispute over the handler’s conduct is taking two forms. First, prosecutors are trying to exclude Smirnov’s expert witness Gregory Scott Rogers, a former FBI agent who would testify to errors that Smirnov’s handler made. They’re also trying to exclude the content of three reports on the handling of Smirnov.

It has, predictably, declined into a display of prosecutorial dickishness.

In their motion to exclude Rogers, for example, the same prosecutorial team who claimed sawdust was cocaine made much of the that Smirnov’s expert witness said “upmost” instead of “utmost.”

Next, the disclosure states, “A CHS providing the type and amount of information provided by Smirnov should be handled with the upmost [sic.] diligence.” Disclosure at 5. According to Merriam-Webster, “upmost is frequently used as a mistaken spelling of utmost in its adjective and noun forms.” https://www.merriamwebster.com/grammar/utmost-vs-upmostdifference#:~:text=In%20its%20dictionary%20sense%2C%20upmost,its%20adjective% 20and%20noun%20forms (last viewed by author on November 1, 2024). The government assumes that Rogers meant to say “utmost,” but the fact that he can’t even produce an error free disclosure speaks to the quality of his proposed testimony. In any event, like his opinion that the defendant was “poorly handled,” his opinion that the defendant should have been handled with the “upmost diligence” is also undefined. So what does “upmost diligence” mean? The disclosure doesn’t tell us.

Of course, these prosecutors aren’t above making their own typos, as when a filing signed by Leo Wise uses “again” instead of “against.”

For example, the government plans to introduce communications found on the defendant’s electronic devices that similarly evidence bias again Public Official 1.

Yet they want to treat far more significant errors made by Smirnov’s handler as “essentially ministerial errors.”

Among the errors documented in the Source Reports include getting Smirnov’s name and birth country wrong.

The reports are also critical to the defense, including based on the anticipated testimony of the Defendant’s noticed expert. For example, in the February 13,2013, Field Office Annual Source Report, FOASR, the following deficiencies were noted:

1. The Handler failed to give the CHS extraterritorial travel admonishments;

2. The Handler allowed the CHS to conduct otherwise illegal activity, OIA, outside of approved time periods;

3. The Handler documented the CHS’s true name in the wrong CHS subfile;

4. The Handler placed an unrelated CHS’s NCIC record in this CHS’s file;

5. The Handler identified the wrong country of birth for this CHS in his file;

6. The Handler failed to document appropriate receipts for payments to the CHS;

7. CHS was allowed to conduct personal international travel without appropriate approval and documentation in his file.

In a later Standard Validation Report covering 2013-2021 it was noted:

1. HA continued to fail to appropriately obtain approval and document CHS’s international travel;

2. Derogatory information reported about the CHS and more unreported/undocumented otherwise illegal activity, OIA.

In the Source Validation Report for the period March, 2021-November, 2023 FBIHQ recommended that FBI Seattle, the office where the HA had transferred to from FBI San Francisco in 2019 and brought Smirnov’s file with him, stop operating the CHS noting that they believed that the CHS was no longer fully under the HA’s control, may be committing unauthorized illegal activity, UIA, and concern that the media’s reporting of the CHS’s information concerning the Biden family’s influence peddling in Ukraine would vitiate his ability to continue to function as a CHS. In that same document, it was recommended that CHS be polygraphed. Based upon the records provided by the government, it does not appear that a polygraph of Mr. Smirnov was ever scheduled or conducted.

Smirnov claims he can prove that he said and did things with his handler that did not get documented. If he can prove that, then it’s going to be hard for prosecutors to prove that Smirnov’s claims are lies rather than that the FBI agent fucked up.

That said, there’s something more interesting about the validation reports on Smirnov: They go through November 2023 and still treat him as a viable informant. November is when, on November 7, David Weiss said the Brady side channel would only appear in his final report. November is when, on November 15, Abbe Lowell asked for discovery on the side channel. And November is when, on November 16, CNN reported that the FBI had dropped its pursuit of FARA and bribery allegations.

Smirnov’s lawyers are right there’s a tie between how Hunter Biden was treated and why he was charged. But they’ve got the emphasis wrong.

All the evidence suggests that prosecutors had to charge him or risk their Hunter Biden case too.

Filings

September 26: Smirnov motion to continue

September 27: Weiss response on motion to continue

October 14: Smirnov warns of motion to compel

October 15: Judge Otis Wright denies continuance

October 28: Government response to discovery

October 31: Smirnov reply on discovery

October 31: Smirnov motions in limine

November 1: Government motions in limine

November 4: Renewed bid to continue trial based on delayed discovery

November 5: Motion to dismiss for discovery violations

November 5: Opposition to renewed bid to continue

November 8: Judge Wright denies motion to compel

November 12: Response to motion to dismiss on discovery violations

November 15: Defense response to motions in limine

October 31: Government response to motions in limine

The Legal Cases Implicating Donald Trump’s Conduct That Won’t Go Away [Because of His Election]

/42 Comments/in , /by

There’s been a lot of chatter since Tuesday about how the criminal cases against Donald Trump will go away because of his election (CNN has one of the most comprehensive discussions of what will happen to Trump’s guilty verdict in New York, for which he is due to be sentenced this month).

But there’s been less discussion of the legal cases implicating Donald Trump’s conduct that won’t go away solely because of his election (which is to say, they may go away for other reasons). These implicate Trump, but because his biological person is not the defendant, should not be implicated by his election.

Consider AJ Delgado’s lawsuit against Trump’s first campaign and his campaign managers. She sued five years ago for sex, gender, and pregnancy discrimination after Trump’s people allegedly retaliated when she filed a discrimination case when she was sidelined after Jason Miller got her pregnant. Of late, she’s been slogging along pro se, seeking evidence of other women who were discriminated against by either of his then two campaigns and getting depositions of people who were involved in the effort to silence her. In September, Trump filed his motion for summary judgment. But Delgado just got a continuance on hers until the end of December because she had to depose Michael Glassner and because Miller continues to waste her time dicking around on paternity issues in Florida.

More interesting still, there’s Peter Strzok. In July, DOJ settled the Privacy Act lawsuits Strzok and Lisa Page filed for having their texts shared with the press. But his claim that he had been fired for his First Amendment protected speech and denied due process continued. In September, DOJ filed its motion for summary judgement. While the filing and exhibits are significantly redacted, the motion seems to dirty Strzok up based on claims about his actions in the cases related to 2016 and argue standard Human Resources claims about the process by which he was fired. Last week, Strzok filed his own motion for summary judgment. Again, it’s heavily redacted, but he notes that the FBI changed their firing guidelines after he and Andrew McCabe were fired. He lays out evidence that others who sent inappropriate content on their FBI devices, including racist language and language attacking Hillary Clinton, were not fired.

But the case is most likely to come down to David Bowdich’s credibility. Bowdich’s deposition appears to say that he fired Strzok because of the damage his texts did to the FBI. Strzok will attempt to discredit Bowdich’s claims, firstly, with a statement from Andy McCabe that when the texts were first discovered, Bowdich said nothing to disagree with McCabe’s stance that Strzok would not be fired. There’s something else, which is completely redacted, that the FBI only disclosed when they settled the Privacy Act suit, but it’s not clear what that is. If it ever goes to trial, then Trump’s claims that he was responsible for the firing will be at issue (and anything else interesting he said in the hard-won deposition Strzok got, as well as Trump’s requests for retaliation.

All that said, the judges in these two cases — Magistrate Judge Katharine Parker (and if it survives, Analisa Torres) for Delgado, and Amy Berman Jackson for Strzok — seem pretty skeptical of these two cases, so they may get dismissed on summary judgment. If not, you might see trials on Trump’s discrimination and retaliation against his perceived enemies next year. But if ABJ doesn’t throw out this case, DOJ is likely to appeal before trial in a bid to expand their authority to fire people without due process.

But I see no reason they’ll get dismissed because Trump will be President. His campaign is the defendant in the first case, FBI is the defendant in the second.

An even more interesting example is Hunter Biden.

A lot of people are rightly saying that Biden should protect his son (and brother) by simply pardoning them on the way out — and I get that instinct. All the more so because, yesterday, James Comer suggested he — or Trump’s DOJ — would renew his pursuit of Hunter Biden in the next Congress. But even after that, Karine Jean-Pierre reiterated the answer she’s always given: President Biden will not pardon his son.

President Biden still has no plans to pardon his son, Hunter Biden, in the final months of his presidency, the White House press secretary reiterated on Thursday.

“We’ve been asked that question multiple times and our answer stands — which is no,” White House press secretary Karine Jean-Pierre said at Thursday’s press briefing.

I had already been thinking that Hunter may not want a full pardon, because he still has appeals that might succeed.

And amid discussions of DOJ’s hopes to defeat the Aileen Cannon precedent on Special Counsels, rather than just dismiss the stolen documents case against Trump and the two aides who protected him, it makes more sense.

Here’s a (dated) summary of all the legal proceedings in Hunter’s life (the two disgruntled IRS agents have since added several suits, one targeting Abbe Lowell for defamation).

The basis for appeal that most dick pic sniffing journalists are focused on is Hunter’s Second Amendment challenge to his conviction in Delaware. In the wake of Bruen, other defendants have had some (mixed) success arguing that — for example — the government can only prohibit possessing guns during drug impairment, and prosecutors very pointedly dodged having to prove that in Hunter’s case. Because other (more dangerous) defendants are delaying incarceration during appeal, I think it plausible that Judge Maryellen Noreika will agree to do so here, too.

But Trump’s successful claim that Jack Smith was not lawfully appointed carries over to Hunter’s cases too (and, importantly, Alexander Smirnov’s). David Weiss was hired under the very same authority that Jack Smith was, the authority that Cannon said was unconstitutional. And both Hunter and Smirnov already tried to make the same argument on interlocutory basis.

On paper, Hunter’s challenge to David Weiss’ appointment as Special Counsel is weakest in Delaware, because Weiss could have prosecuted him as US Attorney anyway. But Cannon’s ruling says that improper appointment resets everything to before the appointment happened. And the most important evidence submitted at Hunter’s trial — the gun residue, a warrant to search his laptop for evidence of drug use, and probably key interviews with Zoe Kestan — all happened after Weiss started acting as Special Counsel. They also all happened after statute of limitations for the crime expired. If this challenge succeeded, the case should be time barred.

Hunter’s case against David Weiss’ appointment would be stronger in LA, because Weiss chose not to use special attorney authority to charge Hunter there (though given how prosecutors charged him, Trump’s DOJ would have until next year to refile the charges).

The case is stronger still for Smirnov, because — by all appearances — Weiss got Special Counsel authority so he could investigate a matter implicating Joe Biden, Smirnov’s allegedly false attempt to frame Biden. Smirnov’s charges, too, are getting stale. Because Weiss charged Smirnov for statements he made in 2020, not last year, they would expire next spring (I’ll return to what recent motions in the case say about Weiss’ investigation).

But as I already said, Smirnov is someone whom Trump might have real incentive to pardon at the start of his term, particularly if Smirnov gets his renewed bid for a delay, meaning a pardon would be pre-trial.

While there are other people (most notably, Michael Cohen) who might challenge their prosecution based on the Cannon precedent, if prosecutions against Smirnov, Walt Nauta, and Carlos De Oliveira went away, via whatever means, then Hunter Biden would be the sole person facing prison time based on what Cannon said was an unconstitutional appointment. While normally he might not do so, given those circumstances, I think both Judge Mark Scarsi might let Hunter stay out of prison pending appeal as well.

The Second Amendment and Special Counsel appeals will get the most attention.

It’s Hunter’s other appeals that might be more interesting, though. Best as I can tell, Hunter has preserved the following issues for appeal in one or both of his cases:

  • David Weiss reneged on a signed deal (the Noreika and Scarsi decisions are slightly inconsistent on this point, so there’s a circuit split already)
  • Pressure from Trump and Congress led Weiss to change his mind about prosecuting Hunter (I’m not certain this has been preserved in Los Angeles)
  • Pressure from the IRS agents led Weiss to renege on the tax plea deal
  • Noreika improperly admitted evidence from the laptop
  • Noreika improperly excluded evidence of how the Delaware cop who interviewed Hunter in 2018 and the gun shop owner pushed to get Hunter prosecuted and then revised their stories long after the fact
  • Noreika improperly refused discovery on issues pertaining to the Brady side channel and Smirnov’s attempt to frame Joe Biden

Hunter’s lawsuits against the IRS and Garrett Ziegler may strengthen his hand in some of these challenges. The Ziegler lawsuit, for example, implicates chain of custody going back to John Paul Mac Isaac, and therefore chain of custody that reflects on the chain of custody problems the FBI chose to ignore. The IRS lawsuit may provide a way to depose the IRS agents’ lawyers about when their contacts with Congress really started.

And one of the claims that Noreika blew off that would have renewed import are two IRS laws that criminalize pressuring the IRS to investigate people, one of which explicitly pertains to the President.

Some of Trump’s possible actions, like a Smirnov pardon, might strengthen Hunter’s hand in making these arguments.

Barring a Hunter Biden pardon, he gets to at least try to make these appeals after he is sentenced in December. And because his appeals will implicate two other legal appeals popular on the right — Trump’s own argument about Special Counsels, and efforts to eliminate gun controls — he may be able to do that on (lengthy) pretrial release.

Again, these are all uphill fights. I’m not saying these appeals will work. But even just arguing them will implicate the kinds of corruption we expect to see going forward.

Right wingers are going to make sure Hunter Biden’s life sucks anyway. But by dint of Trump’s conviction, he has what almost no one else in the country will be able to have: standing to argue about Trump’s own corruption.

David Weiss Chose Not to Record the Alexander Smirnov Interview He Attended

/15 Comments/in , /by

Alexander Smirnov has started filing motions in limine. I’ll return to them after Tuesday.

But for the moment I want to flag a detail he included in a motion to exclude the interview he had on September 27, 2023.

The interview takes up four pages of the indictment. In addition to providing varying statements about the charged false statement — that is, that in a call in 2019, Mykola Zlochevsky accused Joe Biden of accepting a bribe — Smirnov allegedly told a new false story, one that is not charged. he claimed that Hunter Biden had been recorded at the Premier Palace in Kyiv. As the indictment pointed out, that was obviously false, as Hunter Biden had never been to Kyiv.

I’ve always argued that that was an attempt to string on investigators, to give them more dirt on Hunter Biden, precisely what (I speculated) Smirnov perceived that they wanted.

But it was not charged for any of the claims he made in that interview, in which he substantially restated the initial false claim.

This may be why: His motion in limine describes that Special Counsel — that is, David Weiss — attended the interview, and it was not recorded.

Despite seeking an Indictment based solely on statements made in June 2020, Mr. Smirnov understands that the Government intends to introduce statements Mr. Smirnov allegedly made more than three years later, during his interview the FBI on September 27, 2023. Special Counsel was present at this interview, which was never recorded.

This is not — not remotely!! — how you approach an interview with a guy you suspect of lying.

On the contrary, it’s how you approach an interview with someone you’re still treating as a witness against someone else.

This strongly suggests that as late as September 27, 2023 David Weiss was still chasing the effort, launched by Bill Barr’s DOJ, to frame Joe Biden.

As I’ll explain more next week, there are other elements that suggest Weiss and his prosecutors are trying to hang all this exclusively on Smirnov.

Woodward Book: Joe Biden’s “Dementia” Tracked His Stress about Hunter Biden

/64 Comments/in , /by

Axios’ Chief Dick Pic Correspondent, Alex Thompson, did something funny yesterday.

He got very aroused because Bob Woodward’s book describes that donors began expressing concerns about Joe Biden’s mental fitness after a fundraiser in June 2023.

Biden, who was 80, had flown in from Washington earlier that day. A donor acknowledged he had probably woken up very early but appeared tired. “He could not wait to sit down and only took two pre-arranged questions.” He carried a handful of note cards with the answers printed out, but even then seemed to wander off point.

But by later in the day — the following passage, not marked by Thompson, described — donors witnessed the opposite. Biden was energetic. He wouldn’t sit down for two hours.

Thompson did, however, mark a description of events eight days later in June where donors said he couldn’t complete a sentence.

Thompson treated this like a smoking gun. This was proof that Biden’s team was hiding his dementia!!!

But coming as it did from Axios’ Chief Dick Pic Correspondent, it was instead a confession.

That’s because any good Dick Pic Correspondent like Thompson would have started his perusal of Woodward’s book by consulting the parts about Hunter Biden; everyone in DC knows you start reading a Woodward book with the index! And right in the middle of a discussion about Biden’s decision to step down in July, there’s a discussion about Hunter.

Blinken knew Hunter’s struggles had derailed Biden emotionally much, much more than any outsider or the public realized. Another of Blinken’s friends called this “the real war,” the battle that affected Biden more than Ukraine, more than Israel. The guilt was overwhelming. If he were not president, “my beautiful boy,” “my little boy” would not be under the crushing scrutiny of all the investigations, he’d say. Biden was heartbroken.

In June 2023, Biden was showing what people viewed as signs of impairment, but also wild swings from hour to hour, on June 19. In June 2024, Biden had a disastrous debate performance, seemingly confirming real dementia.

And yet, as Tony Blinken described it, what was really going on, what the public didn’t realize, is that Biden was wracked with guilt in knowing that even as Hunter was trying to stay sober, Biden’s political adversaries — abetted by Chief Dick Pic Correspondents like Alex Thompson — had made private citizen and recovering addict Hunter Biden their singular focus, their means to find scandal with Joe Biden (before they moved onto marking just the passages of a book that described him struggling at fundraisers).

The connection between Biden’s worst moments and Hunter’s plight should have been clear to someone like Thompson.

It was to me.

The day after the disastrous debate, I laid out how much stress Biden had been under, pointing specifically to the toll of the deliberately humiliating trial earlier that month and the pending, even more humiliating one.

  • His kid was convicted in a trial that not only laid bare what a cost Joe’s political career has been on his family, but that would, without question, never have happened if his son were not the son of President Joe Biden

And the passage that Thompson treats like a smoking gun shows that on the day prosecutors first floated that there was an ongoing investigation (and, as became clear in retrospect, the first day the new prosecutors who would renege on the plea deal got added to the case), Biden was a mess. But later in the day, when the plea deal had seemingly been finalized, Biden was great.

Here is Chris Clark’s declaration, which describes how, on June 19, Hunter’s team thought they had reassurances that the entire ordeal would soon be over.

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

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

Days later, when disgruntled IRS agents and Chief Dick Pic Correspondents like Thompson began to claw away at the plea again, Biden was once again a wreck.

It’s absolutely true that Woodward’s book describes events a year ago when donors viewed Biden to be a wreck. It’s also true that Woodward provides the alternate explanation that Chief Dick Pic Correspondents should immediately recognize — but won’t, because they’re trying to drum up scandal somewhere else now. One of the things making Biden a wreck was the guilt of knowing his son had become enemy number one as a way to harm him personally.

I’m not saying Biden is not old. I’m not denying that Biden had difficulties advocating for his policies. Harris has done a far better job at doing so.

I am saying that the pack of rabid Dick Pic Sniffers who had spent the first two weeks of June wallowing in just how humiliating prosecutors had made that trial, for the entire Biden family, somehow forgot about what they themselves had described as an immense strain on the entire family a few weeks later when Biden bolloxed that debate. And now Chief Dick Pic Correspondent Alex Thompson can’t even recognize the significance of that date, June 19, 2023, when Biden was having wild emotional swings.

When Vice President Harris answered Hallie Jackson’s question that similarly tried to drum up a smoking gun about Kamala covering up Biden’s purported decline, Harris suggested that Jackson might ask Biden if there was another reason, beyond simple mental impairment, why he dropped out of the race.

Deciding to end the public targeting of his son could well be one reasons.

Why No One Went to Prison for Rudy Giuliani’s Hunter Biden Corruption

/32 Comments/in , , , , /by

Like many people, I’ve watched From Russia with Lev since it was released the other day.

The documentary tells a story I’ve covered here in real time: of how, with Lev Parnas’ help, Rudy Giuliani solicited dirt on Hunter (and Joe) Biden from foreigners, mobsters, and Russian spies, in hopes of helping Trump stay in office.

As told, with Lev’s spouse Svetlana serving as a key narrator, it’s a compelling, personal story.

I’ve also told — am one of the only people who has told — the story that many people are now asking: why no one went to prison for this caper. The documentary has led many people, understandably, to demand to know why no one (besides Lev, they sometimes say, inaccurately) went to prison for all this, which has, predictably, led to the same conspiratorial bashing of Merrick Garland we saw with the January 6 investigation.

The question is premised on certain choices the filmmakers made: focusing away from Dmitry Firtash and especially from Andrii Derkach (who got involved after Lev was done), crediting the spin of Lev’s attorney, Joseph Bondy, and simplifying the investigation of Hunter Biden. The film doesn’t fill in any of the gaps I noted in Lev’s book, and creates new ones. It creates the appearance that Lev was prosecuted solely to protect Trump from impeachment and that the investigation into Hunter arose solely out of Rudy’s efforts. Those choices make sense for narrative and legal reasons, but as a good story does, it simplifies the issue.

And I promise you, the film vastly understates the corruption that went on. Wildly understates it. One goal I have for Ball of Threads is to unpack what is currently known of that far deeper corruption, but that still just scratches the surface.

The quick explanation of why Rudy didn’t go to prison for this is that:

  • Bill Barr did wildly corrupt things to protect him, Donald Trump, and himself
  • By the time, shortly into the Biden administration, DOJ tried to pursue Rudy, Rudy’s phones were corrupted

Trying to hold Garland responsible for failing to prosecute the underlying crime amounts to doing Bill Barr’s propaganda work, because Barr worked relentlessly to protect Rudy.

You can, however, hold Garland responsible for one thing: the continued appointment as Special Counsel of David Weiss, who as a witness to Barr’s corruption, is conflicted in any investigation pursuing Alexander Smirnov’s attempts to criminally frame Joe Biden.

This post explains all that in more detail.

 

Lev didn’t go to prison for the Hunter Biden stuff

As I said, the film leaves the impression that Lev was arrested to protect Trump during impeachment by silencing the key witness.

But that’s not why Lev went to prison (as a news clip in the movie tacitly admits).

Lev and Igor Fruman (along with David Correia and Andrey Kukushkin) were first charged on October 9, 2019, via indictment that was (according to then US Attorney for SDNY Geoffrey Berman’s memoir) drafted quickly overnight in advance of Lev and Igor’s trip to meet Dmitry Firtash in Vienna. From Berman’s memoir, I’m not 100% sure whether he pushed it because he genuinely feared they were about to flee the country, felt he had to do so before Barr intervened … or for more nefarious reasons.

The charges were:

  • Conspiring to make a bunch of political donations in the name of Global Energy Producers
  • Lying to the Federal Election Commission
  • Falsifying a document to the FEC
  • Laundering donations from Russian Andrey Muraviev to pay pro-cannabis politicians

As Bondy described, the indictment implied that Lev and Igor’s political contributions to Pete Sessions were tied to an attempt to fire Marie Yovanovitch. But that was not charged as FARA.

On September 17, 2020, the indictment was superseded. Lev and Correia’s longterm Fraud Guarantee fraud was added and the charges tied to Muraviev (who was secretly indicted that same day) were bumped up. The paragraph describing a payment to Sessions took out the reference to an Ambassador, describing it instead as to “further their political goals.” There were still no FARA charges though.

Ultimately, Lev was convicted at trial in October 2021 of the GEP and Muraviev donations, and in March 2022, pled guilty to the fraud guarantee charges. He was never charged with FARA violations.

Bondy’s insinuation that SDNY took out the foreign agent aspect to protect Rudy is wholly inconsistent with the warrants (linked below) targeting Lev and Rudy unsealed last year.

They show that the investigation into Lev, which started based on a Campaign Legal Center complaint, initially focused on campaign finance crimes. In August 2019 — after the firing of Marie Yovanovitch but before the disclosure of the Perfect Phone Call — SDNY began to turn to Foreign Agent suspicions (though one of two warrants obtained in August 2019 was not executed). After the arrest, SDNY more aggressively turned to developing the Foreign Agent prong of the investigation. On November 4, 2019, SDNY obtained warrants targeting Rudy (which were not released last year). On December 10, 2019, the Foreign Agent prong continued.

That’s when Bill Barr intervened to kill that prong of the investigation, certainly as it pertained to Rudy, as I’ll lay out below.

After that point, SDNY focused on the Fraud Guarantee fraud.

It’s not that Lev went to prison for this but Rudy did not. On the contrary, Barr worked hard to ensure no one could go to prison on such charges.

While Barr was doing that, SDNY appears to have put that investigation on ice and attempted, without success, to resuscitate once Barr was out of office.

SDNY believed Lev was not fully forthcoming

The film makes it sound like SDNY refused Lev’s efforts to cooperate against Rudy and everyone else.

It’s more complicated than that.

SDNY has a rule: To enter into a cooperation agreement with them, one has to plead to all crimes. Geoffrey Berman described it this way in his memoir, explaining why SDNY didn’t give Michael Cohen a cooperation deal.

Cooperation in the Southern District means full cooperation—taking responsibility for all criminal actions, not just a select few. If any one area of a defendant’s life is off limits, we do not recommend leniency in sentencing. (Some districts are more transactional: you give a little, you get a little.)

When defendants agree to this and become cooperating witnesses against others, their testimony is more credible. Our prosecutors can tell juries that if the cooperator is caught lying, the agreement can be revoked and he or she will be prosecuted not only for the crimes covered at trial but for a host of others that the cooperator copped to as part of his agreement.

The SDNY rules also serve as a powerful investigative tool, because when you acquire absolute cooperation, your avenues for making other cases expand dramatically. We often learn of additional criminal activity—whole new threads of wrongdoing that in some instances we knew nothing about.

That’s one reason why SDNY didn’t give Lev a cooperation agreement. As SDNY explained in their sentencing memo for him, Lev’s attorney, Joseph Bondy, proffered information in the months after his arrest in October 2019. But Bondy provided details that were contradicted by the evidence (at the time, Lev may not have understood that FBI had obtained iCloud content he deleted). SDNY then did a reverse proffer on November 6, 2019 (two days after obtaining a warrant for Rudy’s comms), meaning they told Lev and Bondy all the evidence they had against Lev. After that, Bondy replied saying that Parnas was unwilling to plead guilty to the campaign finance crimes charged against him.

After that meeting, Parnas’s counsel wrote the Government to report that he could not “accept responsibility for criminal activity for which he is not guilty,” which based on discussions with counsel, the Government understood to be a reference to, among other things, the campaign finance and false statements offenses of which Parnas now stands convicted.

That’s consistent with Parnas’ own memoir, in which he still attributes the campaign finance stuff as a lack of awareness of the law and of the Russian source of the money he was throwing around.

According to SDNY, that unwillingness to fully accept responsibility continued when Parnas did sit for a proffer on March 5, 2020.

In addition, SDNY was unable to corroborate some of the things Parnas claimed in that March proffer.

[T]he Government was ultimately unable to corroborate significant portions of what Parnas said.

This was during a period when Barr was aggressively trying to limit SDNY’s investigation, so it may not have been Lev’s fault they couldn’t corroborate this stuff.

Finally, DOJ generally has a rule: Cooperating witnesses who chat to the press are usually useless as witnesses. This makes sense for a lot of reasons, not least that it alerts criminal targets of what prosecutors do and don’t know. SDNY told Parnas this early on, in November 2019, and his early 2020 interviews would have only exacerbated this.

At the close of that [November 6, 2019] meeting, the Government informed Parnas that public spectacles, leaks, and social media postings could undermine his credibility and diminish his value as a potential cooperating witness.

Given Barr’s fuckery, I don’t know if Parnas could have pulled off cooperation in any case. But even without it, things he himself did made it virtually impossible he could get a deal from SDNY.

And honestly, it wouldn’t have served his purposes. He needed to come out publicly against Trump, but that was inconsistent with the ability to cooperate criminally. The impeachment was his one shot for accountability, and Congress blew that. (As I was writing this, I considered that, had Democrats made Lev’s testimony more central to impeachment, Republicans might have forced Hunter Biden to testify, as they were threatening at the time; I have long wondered whether Trump’s impeachment defense team had a copy of the laptop.)

Bill Barr insulated the impeachment review from the Hunter Biden caper

The film focuses closely on how, after Trump’s Perfect Phone Call with Volodymyr Zelenskyy was released, onetime Trump defense attorney John Dowd, speaking as a lawyer for Lev and Igor, first refused to cooperate with Congress. Their arrest, days later, put Parnas and Fruman at the mercy of lawyers arranged by Trump, until Parnas hired Bondy.

It is true that their arrest discredited them as witnesses.

But it wasn’t just their arrest that limited the investigation from impacting impeachment. DOJ also did some tactical things to prevent the Trump impeachment from merging with Lev’s prosecution.

When Lev and Igor were arrested, DOJ told the press that Barr had been briefed on the investigation from early in his tenure as Attorney General.

That seems inconsistent with a claim that Barr made in his memoir (which IMO is largely CYA about these matters). Barr claimed he had no awareness of Rudy’s efforts to investigate Biden, and only learned of it from news reports.

By the spring of 2019, I had noticed news stories stating that Giuliani was pushing the Ukrainians to investigate Biden’s role in Shokin’s dismissal. But other than what I glimpsed in the media, I had no knowledge of the former mayor’s activities. During the spring, I expressed my concern about Giuliani with the President. As I was leaving an Oval Office meeting on another topic, I paused briefly to raise the matter.

“Mr. President,” I said, “I don’t think you are being well served by Giuliani at this point. Mueller is over, and Russiagate is dying. Why is Giuliani thrashing about in Ukraine? It is going to blow up—”

“Yeah,” the President said, cutting me off. “I told him not to go over there. It was a trap.” President Trump gave the impression Giuliani had a degree of independence and was going to pull back. I did not press the point.

Even imagining that SDNY kept these details from Barr, by August 14, 2019, it is highly likely that the National Security Division had notice of the focus on Rudy. That’s when possible Foreign Agent charges (and a reference to Marie Yovanovitch) got added to the warrants targeting Lev and Igor.

NSD head John Demers was one of the first people at DOJ to review the Perfect Phone Call. He did so, on August 15, 2019, after SDNY had turned to FARA crimes normally overseen by NSD.

That may explain why DOJ did something that served to insulate the Public Integrity (PIN) review of the Perfect Phone call from the ongoing investigation of Rudy’s efforts with Lev and Igor: Demers and Criminal Division head Brian Benzkowski only had PIN review the transcript of the call, not the full whistleblower complaint. Had investigators done what investigators have been ordered to do since 9/11 with the full complaint, they would have searched on all the references in the complaint, including those in the OCCRP report on Lev and Igor referenced repeatedly in it. That, in turn, should have identified the SDNY investigation, which would have immediately implicated Trump in the investigation.

Effectively, by focusing solely on the transcript, someone at DOJ deliberately blinded that PIN review to an ongoing FARA investigation, thereby eliciting a clean bill of health for Trump.

There’s a lot more that Barr did as the scandal unfolded, as I’ve laid out here and here. But the first thing someone at DOJ did was to gin up a prosecution declination before anyone could tie Trump’s coercion of Zelenskyy with the existing investigation into Lev and Igor.

Bill Barr played a shell game to protect Rudy’s “collusion” with a known Russian spy

Barr was nowhere near done.

There seems have been an ongoing cat-and-mouse between SDNY and Barr.

When SDNY got the indictment, according to Berman, they got approval from two PIN prosecutors in the middle of the night, not NSD, which may be why only the campaign finance crimes were in the indictment and only the campaign finance crimes were on the warrants for the searches done the day of arrest (this would have served to hide that part of the investigation from Lev and Igor, too). That’s the biggest piece of evidence that SDNY did not arrest Lev and Igor as a favor for Barr, as he attempted to kill impeachment, but the reverse.

In October, SDNY got warrants to search everything for the FARA crimes. On November 4, 2019, SDNY got warrants targeting Rudy for FARA crimes.

On December 5, 2019, Rudy met, with Barr’s foreknowledge, known Russian asset Andrii Derkach.

And on December 10, 2019, SDNY got further warrants in that investigation.

DOJ had just let Rudy meet with a Russian spy while SDNY had an ongoing investigation into whether Rudy was working with foreign spies. It was insane to let that happen in any case. All the more so given the ongoing investigation from the Sovereign District of New York, as SDNYers like to call themselves.

So Barr had to gut SDNY’s sovereignty.

Barr did several things:

  • Assigned any investigation of Derkach, with whom Rudy had just met, to EDNY, not SDNY where it would be a natural follow-on.
  • Made EDNY US Attorney Richard Donoghue the gate-keeper for all Ukraine investigations, requiring SDNY to get permission from him before taking any investigative steps against Rudy or Lev.
  • Asked Pittsburgh US Attorney Scott Brady to play a role. Publicly, Barr and Brady claimed this was a vetting process of tips from Ukraine. But Brady’s congressional testimony revealed he did almost no functional vetting; he ignored evidence from the impeachment and some key public articles. Plus, he did more than vetting. Brady also checked in on investigations into all the oligarchs from whom Rudy had solicited dirt on Hunter Biden, with uncertain outcome; he tried to tell SDNY he knew better than they did about their investigation; he demanded details about the investigation into Hunter Biden. Most importantly, some yet unidentified person told Brady to seek out FBI informant Alexander Smirnov, who had made a reference to Hunter Biden in an informant report about Mykola Zlochevsky years earlier. By May 2020, Smirnov was allegedly attempting to frame Joe Biden with allegations of bribery, and Brady made that part of his work. Once again with Smirnov’s allegations, Brady did little functional vetting, falsely claiming that his travel schedule confirmed the claim, rather than debunked it.
  • Barred the FBI Agents working with SDNY from receiving certain information, including Rudy’s interview with Scott Brady.
  • Ordered David Weiss, whom DOJ had put in charge of an investigation into DC and CA resident Hunter Biden, to consult with Brady on his tips.

These efforts halted what should have been obvious next steps in the SDNY investigation, ensured Rudy could share information obtained from a known Russian spy with no legal risk, and ordered that some of Rudy’s information be used in an investigation of Joe Biden’s kid. DOJ was literally protecting a Russian influence operation, because it served the interest of the President.

The biggest reason why Rudy didn’t go to prison for this is that Barr protected this entire process, including the solicitation of dirt from a known Russian spy.

DOJ approved steps against Rudy on Lisa Monaco’s first day on the job

While Trump remained in office, SDNY tried several more times to get warrants targeting Rudy, but were denied.

On Lisa Monaco’s very first day on the job, April 21, 2021, SDNY finally obtained warrants targeting Rudy. Merrick Garland’s DOJ did precisely what everyone is wailing for: He immediately permitted prosecutors to advance this long-thwarted investigation.

Based on what we can see, there were at least two limitations on the investigation, however. First, the warrants targeting Rudy did not include the Trump lawyer’s January 29, 2020 interview with Scott Brady. That suggests Rudy’s effort to share dirt from Russian spies was still protected as cooperation rather than confession, even after Garland took over (indeed, that’s what Rudy pointed to to argue he couldn’t be searched at all, his “cooperation” with Barr). Just as importantly, while some of the 2019 warrant affidavits mentioned Donald Trump’s call to Volodymyr Zelenskyy, the 2021 warrants did not. I would be unsurprised if Barr got OLC to write a memo putting all that off limits before they left office.

Aside from that, DOJ’s approach to Rudy Giuliani remained remarkably aggressive, contrary to what virtually every news outlet will tell you. Importantly, SDNY did something no one else has reported: They installed a Special Master and got permission to review Rudy’s content — all Rudy’s post-2017 content — for privilege. Among other things, that freed up content, including at least one document the January 6 Committee did not get, for any other investigations.

Nevertheless, the delay (or possibly corrupt Rudy dead-enders in NY) appears to have killed any chance of pursuing Rudy for his role in soliciting dirt from Russian spies and others to attack Hunter Biden. On November 14, 2022, SDNY informed the court that the grand jury had concluded without filing charges (though Rudy’s lawyer and Hunter Biden laptop co-conspirator, Robert Costello, has never substantiated a declination letter). In a July 25, 2023 declaration in the Ruby Freeman lawsuit, Costello revealed one potential explanation: many of the devices seized from Rudy obtained in April 2021 were corrupted. Costello blamed the FBI’s contractor for making the phones unusable.

Not all the devices were corrupted, however. As noted, the privilege log from Freeman’s case shows a great deal of files pertaining to January 6 were successfully extracted, including a few identifiable files not obtained by the January 6 Committee.

DOJ also seized a phone from Victoria Toensing. But the value of that may have been limited by attorney-client privileged tied to Firtash, the same privilege which has, at times, led Lev (because he was a translator in that relationship) to limit his own comments about Firtash in all this. To fully unpack what happened, you’d need to know what promises Toensing made to Firtash and what Barr knew about them.

Attorneys General have vast discretion

In a just world, Bill Barr could be held accountable for the corruption he enabled. But that’s virtually impossible under the structures of impunity our system accords prosecutors and Attorneys General.

I’m neck-deep in a post on the three IG investigations pertaining to Bill Barr’s corrupt conduct.

All of them conclude that however nuts Bill Barr’s conduct was, the expansive authority of the Attorney General means that his actions, including his intervention into the sentencing for Trump’s rat-fucker and his decision to share details of minor infraction by someone whom Barr knew would never be charged for political gain, were within the discretion of the Attorney General.

DOJ IG has spent over four years investigating Barr’s corruption, and thus far, they have always concluded that as Attorney General, Barr’s discretion was so vast that he can break all of DOJ’s rules prohibiting its politicization.

There’s still at least one IG Report including Barr’s conduct outstanding (almost certainly, the ongoing investigation into DOJ getting the communications records of journalists for whom people like Jim Comey might have been a source). But of all the fuckery I know Barr to have committed, I can envision only a few details of his conduct might even remotely end up the focus of criminal investigation.

Even the most corrupt insinuations about Rudy’s efforts, in which Rudy allegedly offered Ihor Kolomoyskyi, Dmitry Firtash, and Mykola Zlochevsky relief from criminal investigations for dirt on Hunter Biden, would be included in this.

Lev explains why in his book: This was deliberately framed as the exact equivalent of Andrew Weissmann’s efforts to flip Firtash for information on Paul Manafort.

Andrew Weissman, who was lead prosecutor for the investigation of Russian collusion in the 2016 Election, had gotten there first. He offered a deal in which Firtash could avoid prison if he testified about the relationship between Trump and Russian President Vladimir Putin. The inclusion of Putin meant that Firtash would never take the deal. Nobody over there wants to make Putin angry.

Nobody else knew about the deal he was offered. Giuliani and Solomon wanted Firtash’s legal team to make it public. His Viennese lawyers were against it, so Firtash was reluctant. Soon, in a heated meeting in Vienna, an argument between some of Firtash’s legal team led to Victoria Toensing, who was on our team, confronting Dan Webb about it months later. Webb — who was connected with Weissmann, William Barr and other heavy hitters — admitted to the deal.

Still, we convinced Firtash that we — who were representing Trump’s interests — could help him with his extradition far more effectively than Weissman. The real goal for us was to get Firtash to use his contacts to pressure President Zelenskyy to announce an investigation of the Bidens. Our pitch was successful, Firtash agreed to hire Giuliani for $1 million. And $200,000 for me to be official translator and to be under the attorney-client privilege umbrella.

Prosecutors trade leniency for information on other crooks all the time. Here, however, it was the Attorney General, who had never served as a prosecutor himself, who would be making those deals, offering leniency to foreign oligarchs if they could offer dirt on Donald Trump’s likely opponent.

It’s unclear whether, and if so what, deals were made: an investigation into Zlochevsky was reportedly shut down in December 2019; investigations into Kolomoyskyi ratcheted up in 2020; and the prior investigation into Dmitry Firtash remains deadlocked on his extradition, as it has been for years.

But these kinds of deals would be consistent with an elaborate effort Barr makes in his book to spin Trump’s pursuit of dirt on the Bidens as a legitimate law enforcement pursuit, the logic of Trump’s impeachment defense taken to its logical conclusion.

It’s all transparent bullshit. But it would also be virtually impossible to debunk at trial, even if you could get beyond the vast discretion of an Attorney General.

David Weiss’ appointment threatens to limit further fallout

There’s one thing I do fault Merrick Garland for: For not removing David Weiss from the investigation into Alexander Smirnov.

By all appearances, Weiss asked to be appointed Special Counsel only after he renewed his focus on Smirnov in July 2023, after receiving, but blowing off, the allegation days before the 2020 election, on October 23, 2020.

Investigating Smirnov’s allegation that Joe Biden accepted a bribe from Burisma was the first thing that focused the investigation onto Biden, after the original prosecutor, Lesley Wolf had successfully avoided that focus for years. It was the first thing that created a real conflict with working for Joe Biden.

And Weiss bases his authority to prosecute Smirnov for lying when he started chasing that hoax on his Special Counsel authority. He could only do so if he were legitimately chasing that hoax as witness testimony.

Here’s the problem with that: David Weiss is a witness in what should be a broader investigation into how a side channel set up by Bill Barr ended up discovering an informant who once met Mykola Zlochevsky and then not vetting the false claims he made. At the very least, there should be an investigation into who — everyone swears it was not Rudy, and Smirnov has at least three other links to people close to Trump — alerted Brady that Smirnov might offer up such claims.

Bill Barr’s deputy ordered David Weiss to accept briefing on this hoax. He ordered him to let Scott Brady snoop on Weiss’ investigation of Joe Biden’s kid. That makes Weiss a witness. Once Smirnov became a subject rather than a witness, that created a conflict that should disqualify Weiss from overseeing an investigation into the former informant and the circumstances that allowed him to make allegedly false allegations against Joe Biden.

Merrick Garland should (at a minimum, though I could argue more broadly) move the primary team prosecuting Smirnov under supervision without such conflicts. A system set up by Bill Barr criminally framed Joe Biden, and a guy who worked with Bill Barr on that case continues to supervise the aftermath.

The complicity of the press

There’s one more party that demands accountability: The press.

Much of what I wrote in this post is public. It requires diligent reading, but not great access to Donald Trump or anyone else.

Not only has this entire story not been reported by mainstream outlets. Not only did NYT affirmatively obscure Rudy’s role in all this (and therefore Trump’s) in their one attempt to cover it. But one after another journalist — especially at NYT — writes stories that disappear the Hunter Biden pursuit from all of Trump’s abuse of DOJ. Indeed, some outlets, including Rachel Maddow’s parent company, seem to treat Hunter Biden as a gossip rag to drive clicks, rather than the locus of unprecedented corruption. Rather than chasing this story, or even asking Bill Barr direct questions about it, one after another TV star invites him on as if he’s a critic of Trump’s corruption, rather than a key player in it. WaPo’s Will Lewis pointed to a badly conflicted Hunter Biden piece as his antidote against accusations of lefty bias.

Want to know how Rudy Giuliani was allowed to solicit dirt from Russian spies to help Trump get elected, without accountability? Want to know why Barr is considered a critic of Trump rather than his most corrupt enabler? Ask the journalists who lost interest in that story as soon as Rudy released a laptop full of Hunter Biden’s dick pics.

From Russia with Lev begins to reverse all that. But as infuriating as it is, it barely scratches the surface.

Timeline

Below, every bullet is a known warrant. The ones not linked were described in a passage that failed to be fully redacted in a Lev Parnas filing. This document compares the Foreign Agent focus of the three warrants bolded below.

  • January 18, 2019, 19 MJ 1729: Yahoo and Google content

May 15, 2019: Marie Yovanovitch firing public

  • May 16, 2019, 19 MJ 4784: iCloud content
  • August 14, 2019, 19 MJ 7593: Yahoo and Google content since January, with expanded focus
  • August 14, 2019, 19 MJ 7594: Unknown warrant
  • August 14, 2019, 19 MJ 7595: Existing Yahoo and Google content, with expanded focus

September 25, 2019: Disclosure of Perfect Phone call

October 9, 2019: Lev Parnas and Igor Fruman arrested

  • October 17, 2019, 19 MJ 7595: Actual authorization of the warrant approved in August
  • October 21, 2019, 19 MJ 9829: iCloud content since May
  • October 21, 2019, 19 MJ 9830: Unknown warrant
  • October 21, 2019, 19 MJ 9831: Devices from Dulles
  • October 21, 2019, 19 MJ 9832: Existing iCloud content for expanded focus
  • November 4, 2019: Warrant for Rudy’s iCloud
  • November 4, 2019: Warrant for Rudy’s email
  • November 4, 2019: Warrant for Victoria Toensing’s iCloud
  • November 6, 2019: Warrant for Yuriy Lutsenko’s email

December 5, 2019: Rudy meets with known Russian asset, Andrii Derkach

  • December 10, 2019, 19 MJ 11500: Stuff seized from residences for foreign agent focus
  • December 10, 2019, 19 MJ 11501: Instagram
  • December 10, 2019, Warrant for Roman Nasirov’s email
  • December 13, 2019, Warrant for Victoria Toensing’s email

December 14, 2019: Barr aide texts him: “Laptop on way to you”

January 3, 2020: Barr establishes dedicated channel to ingest Rudy’s dirt

January 17, 2020: Jeffrey Rosen makes Richard Donoghue a gatekeeper for all Ukraine-related investigations

  • February 28, 2020: iPhone of Alexander Levin
  • March 3, 2020: iPad of Alexander Levin
  • March 20, 2020, 20 MJ 3074: Fruman iCloud content obtained with October 21, 2019 warrant to cover earlier periods

June 20, 2020: Barr fires Geoffrey Berman

November 2020: SDNY denied authority to seek devices of Rudy Giuliani

January 2021: SDNY denied authority to seek devices of Rudy Giuliani

  • April 13, 2021: Cell site data for Rudy and Toensing

April 21, 2021: Lisa Monaco sworn in

  • April 21, 2021, 21 MJ 4335: Rudy’s office, residence, and devices
  • April 21, 2021: Victoria Toensing iPhone

Kamala Harris Is Not Goading Journalists to Publish Emails Iran Stole from Roger Stone

/33 Comments/in , , /by

As I’ve alluded to a few times, I was sent what I believe to be three of the files Iran puportedly stole from Trump’s team. I received them after I explained why I thought this hack-and-leak was different than the Hillary one in ways that should influence considerations about publishing:

  • Trump doesn’t compartment his campaign from his crimes, meaning Iran could be — could have been trying, could have succeeded in — stealing information about the Iran-related documents Trump took when he left the White House. The report that Susie Wiles was the intended target of the hack confirms that risk. In addition to running Trump’s campaign, Wiles decided who would be provided defense attorneys paid by the campaign. Aside from the classified information Trump shared with her, she should never have had anything implicating classified discovery and the classified discovery itself should never have left the SCIFs in which it was provided to defense attorneys. But she is likely to know some of what — for example — witnesses like Kash Patel said about classified information.
  • In addition to the hack, Iran allegedly was also trying to solicit a hit squad to kill Trump (indeed, the alleged recruiter, Asif Merchant, was just indicted on Wednesday). That makes the possibility of Iran exploiting internal information from Trump’s campaign (such as travel details) far more dangerous.

I had decided it wasn’t worth participating. And then I got sent files I believe to be those vetting files.

In the last few days, Google has slapped a phishing warning on the files I got sent.

Even though I offered that explanation a month ago, I still get questions from people about why I, and why other outlets, haven’t published the documents.

Don’t get me wrong, other outlets are, without a doubt, exercising a double standard in choosing not to publish these documents, or at least reviewing whether the JD Vance vetting document includes some of the really damning videos surfaced since Trump picked him. It’s not just the Hillary emails in 2016. Every single outlet known to have received these files has also chased the Hunter Biden laptop, even though they never succeeded in implicating Joe Biden in anything found in the laptop. The dick pics were enough to sustain many outlets for a year (and longer, in the case of the NYPost).

But there’s one other big, big difference — one that I think explains the entire difference.

As far as I know, no one in the Kamala Harris campaign is goading journalists to post the documents.

Compare that to 2016, where Trump’s top people were strategizing how to maximize attention on John Podesta’s risotto recipe. Somebody who may be Don Jr was getting all his trolls to push hashtags so “liberal news forced to cover it.” Or 2020, when Trump’s personal lawyer flew around the world, even meeting with known Russian spies, looking for dirt on Joe Biden’s kid. And when a laptop of dick pics dropped in Rudy Giuliani’s lap, like magic, the far right demanded that private social media companies let those dick pics disseminate like wild, because — they claimed — the dissemination of distractions about Hunter Biden was absolutely crucial to Trump’s election strategy.

If I’m right that Kamala Harris has never encouraged journalists to post these documents, there would be a very good reason why not, even beyond the considerable national security risks of encouraging hack-and-leak operations from hostile intelligence services.

Kamala has just 107 days to win an election. And she has a story that she is very very busy telling.

Hack-and-leak operations are about attention, about distraction. If she focused on these stolen documents, she would distract from her own campaign, from the story she is busy telling.

In 2016, Trump used the documents Russia stole to suck up media attention, which served to distract from his own corruption. That’s what he tried in 2020, too. And media outlets have, quite literally, argued that they could avoid accusations of liberal bias by printing error-riddled stories about Hunter Biden, still sucking on that dick pic, three years later.

Hack-and-leak operations help someone like Donald Trump, because too much scrutiny of his own actions might sink his campaign.

But Harris is doing something different than Trump. She’s trying to convince voters that government can improve their lives. She’s trying to convince voters that she cares about their issues and plans to [try to] address them. She needs to sustain their attention long enough to tell that story.

She doesn’t have the time to chase distraction with documents stolen from Trump.

Besides, the press has barely scratched the surface of the corruption or right wing extremism of Trump and his running mate, just sitting in plain sight, such as JD’s claim that we’re still fighting the Civil War and he’s fighting on the side of the south, or Trump rolling out another effort to cash in on his campaign, just weeks before the election.

There’s no shortage of dirt on Donald Trump. Nothing Iran has offered, thus far, at all compares to the stuff sitting out in plain sight.

There is, however, a shortage of time. And wasting time on stolen emails would squander what little time there is.

Hunter Biden Pleads Guilty

/54 Comments/in /by

Hunter Biden just pled guilty to all of the tax charges against him, staving off a trial in which prosecutors were intent to once again introduce things unrelated to tax charges.

He will be sentenced in December.

Update: Here is Hunter’s statement.

I went to trial in Delaware not realizing the anguish it would cause my family, and I will not put them through it again. When it became clear to me that the same prosecutors were focused not on justice but on dehumanizing me for my actions during my addiction, there was only one path left for me. I will not subject my family to more pain, more invasions of privacy and needless embarrassment. For all I have put them through over the years, I can spare them this, and so I have decided to plead guilty.

Like millions of Americans, I failed to file and pay my taxes on time. For that I am responsible. As I have stated, addiction is not an excuse, but it is an explanation for some of my failures at issue in this case.

When I was addicted, I wasn’t thinking about my taxes, I was thinking about surviving. But the jury would never have heard that or know that I had paid every penny of my back taxes including penalties.

That I have been clean and sober for more than five years now because I have had the love and support of my family.

I can never repay them for showing up for me and helping me through my worst moments. But I can protect them from being publicly humiliated for my failures.

For anyone now going through the scourge of addiction, please know there is a light at the end of that seemingly endless tunnel. I was where you are now. Don’t quit right before the miracle.

 

In Attempting To Claim WaPo Doesn’t Chase Rat-Fucks, WaPo Lies about Chasing Rat-Fucks

/73 Comments/in , , , , /by

I’m the rarity among lefties who supports the decision of Politico, WaPo, and NYT (thus far) to not publish the actual files that a persona suspected to have ties to Iranian hackers sent them. That’s true, partly because I think this hack could be even more dangerous than the one of Hillary. But it’s also true because of the opportunity cost that publishing stolen documents incurs.

I prefer Kamala Harris’ message to remain the affirmative message she’s running on, and to the extent that those outlets are doing reporting like the story further developing the suspected $10 million payment via Egypt to Trump, I’d like them to continue to pursue real reporting, as well.

One of the real impacts of the files Russia hacked in 2016 is that they distracted journalists from harder work, work about what a corrupt man Trump is. Campaign reporters are already distracted too easily by nonsense stuff; they don’t need any further distractions from their day job.

That said, reporters don’t have to publish the actual documents to address something that is clearly newsworthy about the files. As Politico explained, the main thing the persona has sent so far was a draft of the vetting document for JD Vance and Marco Rubio.

A research dossier the campaign had apparently done on Trump’s running mate, Ohio Sen. JD Vance, which was dated Feb. 23, was included in the documents. The documents are authentic, according to two people familiar with them and granted anonymity to describe internal communications. One of the people described the dossier as a preliminary version of Vance’s vetting file.

The research dossier was a 271-page document based on publicly available information about Vance’s past record and statements, with some — such as his past criticisms of Trump — identified in the document as “POTENTIAL VULNERABILITIES.” The person also sent part of a research document about Florida Sen. Marco Rubio, who was also a finalist for the vice presidential nomination.

Note, this mirrors one of the first things Guccifer 2.0 released in 2016: Hillary’s oppo dossier on Trump. So in addition to its use of an AOL account, this persona is adopting another of the Russian persona’s tactics.

Again, I’m cool with outlets sitting on the dossier itself. But the content of it is newsworthy. That’s because after JD Vance’s rocky rollout, both donors and Trump himself are asking whether vetters were surprised by Vance’s misogynist public statements.

Over the past two weeks, Mr. Trump has fielded complaints from donors about his running mate, JD Vance, as news coverage exploring Mr. Vance’s past statements unearthed — and then exhaustively critiqued — remarks including a lament that America was run by “childless cat ladies.”

Mr. Trump dismissed out of hand donors’ suggestions that he replace Mr. Vance on the ticket. But Mr. Trump privately asked his advisers whether they had known about Mr. Vance’s comments about childless women before Mr. Trump chose him.

I’d also like to know if Trump’s vetting team knew of the pictures of JD wearing drag while at Yale, which have become the subject of memes on social media.

Whether the dossier was comprehensive matters (particularly given that a law firm also involved in Trump’s criminal defense completed it). It matters, most of all, because Trump has swapped the mediocre Ivanka as his primary familial advisor for the incompetent Don Jr, and the failson had a key role in picking JD.

So it would be newsworthy to reveal the scope and the thoroughness (or not) of the vetting document.

That said, I think every outlet that is sitting on these documents, particularly if they’re withholding details about any oversights in JD’s vetting document, owes the public an explanation of why they’re adopting a double standard as compared to their poor choices from 2016.

WaPo, which is trying to hunker through controversy about Will Lewis’ possible role in covering up Murdoch’s phone hacking,  tried to do that yesterday. Matt Murray boasted that outlets were taking a breath, and then went on to claim that the vetting document isn’t newsworthy because the six-month old vetting document isn’t, “fresh or new enough.”

“This episode probably reflects that news organizations aren’t going to snap at any hack that comes in and is marked as ‘exclusive’ or ‘inside dope’ and publish it for the sake of publishing,” said Matt Murray, executive editor of The Post. Instead, “all of the news organizations in this case took a deep breath and paused, and thought about who was likely to be leaking the documents, what the motives of the hacker might have been, and whether this was truly newsworthy or not.”

[snip]

“In the end, it didn’t seem fresh or new enough,” Murray said.

WaPo even attempted to address something virtually all discussions about using rat-fucked documents in the context of the suspected Iranian hack do not: the treatment of the Hunter Biden laptop, the most innocent provenance explanation for which is that, after pursuing a laptop from foreigners with ties to Russian intelligence for a year, Rudy Giuliani received just such a laptop out of the blue from a blind computer repairman.

Here’s what WaPo claims about how reserved news organizations were with the hard drives described as the Hunter Biden laptop.

News organizations have been tested since 2016. Wary of (1) hacked materials since then, many proved reluctant to report on the contents of Hunter Biden’s laptop out of concerns that they were the result of a hack. As the conservative press latched on to (2) allegedly incriminating emails found on the computer in the final weeks of the 2020 campaign, more mainstream outlets did not join in a 2016-style frenzy over the material, and Facebook and Twitter limited distribution of a New York Post story about the laptop.

An analysis by The Post nearly two years later confirmed the authenticity of many of the emails on the laptop and found no evidence of a hack. [my annotation]

Note the two reasons alluded to in this passage, both of which show up in Murray’s claimed explanation for sitting on the JD Vance dossier. There were two concerns, according to the WaPo:

  1. Was the laptop “hacked”?
  2. Did the “allegedly incriminating emails” prove what the NYPost claimed they did?

Then, in the next paragraph, WaPo addresses just one of those two issues, whether the hard drive copied from a copy of a laptop, was hacked. WaPo claims, falsely, that the linked story describing the results of Jake Williams and Matt Green’s analysis “found no evidence of a hack.”

For starters, that’s a category error. This is a copy of a copy of a laptop, not the laptop itself. What their analysis attempted to assess was the authenticity of the emails on the laptop — but two different security researchers were only able to do so for a fraction of the emails. This analysis made no attempt to assess whether the stuff on the laptop was packaged up from authentic files (or from a combination of authentic and doctored files). Far more importantly, given details of Hunter’s cloud accounts, it did not assess whether people besides Hunter Biden had access his cloud data (evidence at his gun case described that not just his mistress, Zoe Kestan, accessed his cloud data, but his drug dealers accessed at least his bank account).

But it did find that the copy of a copy of a laptop lacked marks of reliability and did include files placed there by someone other than Hunter Biden.

Most of the data obtained by The Post lacks cryptographic features that would help experts make a reliable determination of authenticity, especially in a case where the original computer and its hard drive are not available for forensic examination. Other factors, such as emails that were only partially downloaded, also stymied the security experts’ efforts to verify content.

[snip]

In their examinations, Green and Williams found evidence that people other than Hunter Biden had accessed the drive and written files to it, both before and after the initial stories in the New York Post and long after the laptop itself had been turned over to the FBI.

[snip]

“From a forensics standpoint, it’s a disaster,” Williams said. (The Post is paying Williams for the professional services he provided. Green declined payment.)

[snip]

Neither expert reported finding evidence that individual emails or other files had been manipulated by hackers, but neither was able to rule out that possibility.

[snip]

Analysis was made significantly more difficult, both experts said, because the data had been handled repeatedly in a manner that deleted logs and other files that forensic experts use to establish a file’s authenticity.

“No evidence of tampering was discovered, but as noted throughout, several key pieces of evidence useful in discovering tampering were not available,” Williams’ reports concluded.

There are several details, disclosed subsequent to the story, that it lacks: It doesn’t talk about the ways the story John Paul Mac Isaac’s attorney told WaPo conflict with the story JPMI would tell in his book (one very significant conflict pertains to the date when JPMI reached out to the FBI). It doesn’t describe that JPMI himself disavowed some of the content on the Jack Maxey hard drive, the one shared with the WaPo. It doesn’t describe that Hunter has sued Garrett Ziegler and Rudy Giuliani for hacking him (the former survived Ziegler’s motion to dismiss; the latter was dismissed pending the end of Rudy’s bankruptcy; as far as I know, Hunter has not yet renewed the suit against Rudy given the imminent dismissal of Rudy’s bankruptcy). It doesn’t describe that in court filings, Abbe Lowell affirmatively claimed that the data on the laptop itself — not the copy! — had been compromised before being shared with the FBI.

Defense counsel has numerous reasons to believe the data had been altered and compromised before investigators obtained the electronic material from Apple Inc. and The Mac Shop, such that the Special Counsel’s claim that the underlying data is “authentic” (id. at 4) and accurately reflects “defendant’s Apple Macbook Pro and [] hard drive” (id. at 2) is mistaken.

Mr. Biden’s counsel told the Special Counsel on May 10, 2024 it agrees not to challenge the authenticity of the electronic data the Special Counsel intends to use with respect to it being what law enforcement received on December 9, 2019 from John Paul Mac Isaac (owner of The Mac Shop), and from Apple on August 29, 2019 and in a follow-up search on July 10, 2020. (Mot. at n.3.) However, Mr. Biden cannot agree this electronic data is “authentic” as to being his data as he used and stored it prior to Mac Issac obtaining it.

WaPo relies on a two year old story that has been significantly preempted to claim that the copy of the copy of the laptop was not hacked. The story never made such a claim, and the claims it has made have been undermined since.

But there’s an even more telling aspect of WaPo’s self-satisfied claim that reporters gave up their rabid addiction for rat-fuckery after 2016. It doesn’t address whether the laptop subsequently became newsworthy.

There’s good reason for that: Because after the election, WaPo did embrace the laptop, even the doctored one they got from Maxey, as part of a years-long campaign of dick pic sniffing. Their lead dick pic sniffers, Matt Viser and Devlin Barrett, even made shit up when disgruntled IRS agents released details that raised questions about the integrity of the original copy. Since then, prosecutors themselves have described that the extraction of the copy of the laptop they received — the one whence all the data that sloppy reporters call “the laptop” came — is 62% bigger, measured in terms of pages, than the laptop itself. There are potentially innocent explanations for why the hard drive purporting to be a copy of the laptop would not match it, but those explanations would conflict with JPMI’s explanations for how he made the copy. And, scandalously, the FBI never made an index of the laptop, and Judge Maryellen Noreika allowed it to be used in the trial against Hunter without ever even assuring that the forensic reports on the extraction of the two devices matched what got certified to her in a court filing.

And WaPo is not alone in its continuing addiction to relying on a copy of a copy of a laptop with such provenance problems. Just yesterday, NYT’s Ken Vogel did a story that relied on the laptop which basically said, Hunter Biden asked the Commerce Department for help on Burisma but it blew him off (unsurprisingly, Vogel also struggles with the court filings on which he bases his news hook). Four years after Vogel’s chum Rudy Giuliani released the laptop, three weeks after Joe Biden dropped out, NYT is still reporting the absence of news in an 8-year old email as news, precisely the kind of attention suck that rat-fuckers seek when they provide stolen documents to people like Vogel.

Again, in my opinion, WaPo is right not to publish the JD Vance dossier, though that’s different than using it to assess whether there were big gaps in the vetting of Trump’s unpopular running mate.

But WaPo is telling fairy tales about whether mainstream outlets gave up their fondness for rat-fuckery.

They did not. For four years, they have been utterly addicted to the rat-fuckery of the laptop, to the exclusion of reporting on all the details that should raise cautions disclosed since then.

And as such, the decision not to embrace this rat-fuckery, however correct it might be, is a double standard.