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Derek Hines’ Romanian Freeh Fall

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There have been a bunch of developments in Hunter Biden’s Los Angeles case that I hope to catch up to:

  • Prosecutors’ games with coercing testimony from Hunter’s family members, again
  • The status of both Hunter’s and Alexander Smirnov’s efforts (Smirnov’s is before a different judge) to replicate Trump’s challenge to Special Counsel authority
  • The apparent strategy prosecutors will use to prove their case — including an effort to limit how much Hunter can talk about the addiction they spent a week proving in Delaware

But I want to talk about the curious conflict that prosecutors’ may create effort to use Hunter’s work for Romanian businessperson Gabriel Popoviciu to smear Hunter in the guise of proving his acuity. Both parties are renewing the motions in limine they submitted in May before the trial got moved, and on July 31, Hunter submitted a motion to exclude any allegations of (my word) influence peddling — basically, the arguments the House has been focused on.

Defendant Robert Hunter Biden, by and through his counsel of record, herebyfiles this Motion in Limine to exclude from trial reference to any allegationthatMr.Biden (1) acted on behalf of a foreign principal to influence U.S. policy and public opinion, (2) violated FARA, (3) improperly coordinated with the Obama Administration, (4) received direct compensation from any foreign state, (5)receivedcompensation for actions taken by his father that impacted national or international politics, or (6) funneled money to his father or any related alleged corruption(together, allegations of “improper political influence and/or corruption”).

Hunter argued that since he had never been charged for any such crime, it should not come in at the trial.

Mr. Biden is not,and never has been, charged with any crime relating to these unfounded allegations, and the Special Counsel should thus be precluded from even raising such issues at trial.

Hunter even renewed his complaint that prosecutors wanted to present such evidence even though he had agreed not to raise how they had chased Alexander Smirnov’s hoax against Hunter and his father.

Defense counsel notes that it is ironic that the Special Counsel has filed a motion in limine to exclude evidence “alleging the prosecution of the defendant is somehow due to or part of a Russian malign election influence campaign,”whichMr.Biden did not object to. (DE 92 at 4.) Yet, the Special Counsel opposes the instant motion, which would preclude him from putting forward similar politically charged information to the jury. To prevent this trial from becoming a trial on politics rather than a trial on the charges in the Indictment, this Court should grant both the Special Counsel’s motion as it relates to a “Russian malign election influence campaign”and this Motion.

In David Weiss’ response (importantly, signed by Derek Hines), he scolds Hunter for not offering up what was provided in Jencks production in May, and uses that to submit a filing from Rob Walker’s grand jury testimony under seal, as if that was Hunter’s job to do.

In addition to providing evidence prosecutors allege will show that Hunter “performed almost no work in exchange for the millions of dollars he received from” Burisma and CEFC, prosecutors want to show the work that Hunter did do for Romanian businessman Gabriel Popoviciu. They claim it’ll not only show what income Hunter made in 2017 — something that can easily be shown with bank statements — but also show that Hunter retained his full capacities in a year he didn’t pay taxes (albeit a year when Hunter allegedly simply forgot to pay his prior year’s taxes).

For Count 2, the government must prove that the defendant owed taxes on his income for the calendar year ending December 31, 2017. See Dkt. 159-1, Gov’t Proposed Instruction No. 34 (Failure to Pay). The purpose and structure of the payments and the nature of the work described above are relevant because they establish that the defendant received income when payments were made by Business Associate 1 and the year in which the defendant earned the income. See United States v. Hoegel, 723 F. App’x 421, 424 (9th Cir. 2018) (unreported). Moreover, the evidence of what the defendant agreed to do and did do for G.P. demonstrates the defendant’s state of mind and intent during the relevant tax years charged in the indictment. It is also evidence that the defendant’s actions do not reflect someone with a diminished capacity, given that he agreed to attempt to influence U.S. public policy and receive millions of dollars pursuant to an oral agreement with Business Associate 1 in an arrangement that concealed the true nature of the work he was performing for G.P. See id. at Gov’t Proposed Instruction No. 29.1 (“Diminished Capacity”).

Amid a bunch of other fairly reasonable or routine motions, this one is an outlier. Particularly given how Hunter’s non-payment of 2016 taxes was charged as a crime that occurred in 2020 (meaning, Hunter’s acuity in 2017 is not directly tied to the crimes alleged), it feels very equivalent to John Durham’s corrupt efforts to insinuate a conspiracy by making allegations he couldn’t prove in court filings. The inclusion of all this is a stretch (though Mark Scarsi has been overly solicitous of the government’s requests, and I have no expectation that’ll change).

For all three relationships, Weiss can simply prove Hunter made the money by pointing to bank accounts. Including anything more is prejudicial, wildly prejudicial in a trial scheduled during campaign season.

Hines’ stunt of providing the Rob Walker transcript seems designed to ensure it gets shared one way or another, and in the process, freed up for inclusion in a final report.

But here’s the reason why Weiss’ focus — Derek Hines’ focus — is so curious. Prosecutors seem prepped to argue that Hunter himself peddled influence for Popoviciu — but as [!!!] Fox News explained two years ago, Hunter didn’t do the work. Other lawyers at Boies Schiller did … including, especially, Louis Freeh.

Hunter Biden and his colleagues at a high-powered law firm tried to leverage their government connections in the final months of the Obama administration in a failed bid to help a Romanian real estate tycoon avoid a conviction on bribery charges.

Emails obtained from Hunter’s abandoned laptop show the younger Biden — then working as a counsel at Boies Schiller Flexner LLP — reached out to former FBI Director Louis Freeh in June 2016 about the case of Gabriel Popoviciu, who was accused of acquiring land to build a Bucharest mall at a below-market price, the Daily Mail reported.

In a June 18, 2016, email, Hunter Biden told Freeh — then a partner at the Delaware-based law firm Freeh, Sporkin & Sullivan — that he believed Popoviciu was “a good man that’s being very badly treated by a suspect Romanian justice system … Time is of the essence and my client has never balked at bringing whatever team it takes together at whatever cost to obtain justice.”

While Freeh’s initial response, which began “Thanks for your note and for thinking of me,” was noncommittal, he was soon fully invested in Popoviciu’s case.

“I will see my good friend Ron Noble (former SecGen INTERPOL), in NY on Thursday,” Freeh wrote Hunter three days after the initial email, “and most likely he knows this DNA [Romanian National Anti-Corruption Directorate] prosecutor, Laura Codruta Kobesi, very well. Let me talk to him and see what the possibilities may be to meet with her and to initiate a dialogue which would remediate the situation.”

This does make it similar to what Hunter did with actual lobbying for Burisma and influence-peddling for Patrick Ho: brokering relationships to have other people do the work.

And (as more anti-Hunter outlets have explained) Derek Hines worked with Freeh for eighteen months leading up to these events.

Hines’s LinkedIn says he worked as ‘Special Counsel’ for the ex-FBI director at his company Freeh Group in New Orleans, Louisiana, between August 2013 and February 2015. It is unclear what projects he counseled Freeh on.

It wasn’t until 2016 that Hunter started working with Freeh consulting for Popoviciu.

Indeed, Hines’ past work with Freeh was the subject of conspiracy theorizing that he was covering for Freeh.

At least as explained, Freeh’s role seems to go to the core of the allegations Hines wants to present in court, allegations that have nothing to do with non-payment of his taxes, allegations that say nothing about Hunter’s acuity in 2020, when he allegedly chose not to pay his 2016 taxes.

Yet Hines appears to have had a closer relationship to Freeh than Hunter did.

How to Fact Check Trump’s Lies about His Document Case

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I just won the case in Florida. Everyone said that was the biggest case, that was the most difficult case. And I just won it.

Biden has a similar case, except much worse. I was protected under the Presidential Records Act. Biden wasn’t, because he wasn’t President at the time. And he had 50 years worth of documents, and they ruled that he was incompetent, and therefore he shouldn’t stand trial.

And I said, isn’t that something? He’s incompetent and he can’t stand trial — and yet, he can be President. Isn’t that nice? But they released him on the basis that–

[Goba attempts to interrupt]

— that he was incompetent. They said he had no memory, nice old guy, but he had no memory. Therefore we’re not gonna prosecute him.

I won the case. It got very little publicity. I didn’t notice ABC doing any publicity on it, George Slopodopoulos. I didn’t notice you do any publicity on it at all.

[Scott tries to interrupt]

I won the case, the biggest case. This is an attack on a political opponent. I have another one where I have a hostile judge

Scott: Sir, if you don’t mine, we have you for a limited time. I’d love to move onto a different topic.

Trump: No excuse me, you’re the one that held me up for 35 minutes.

The three women who attempted to interview Trump yesterday had an uneven performance. At times, their questioning flummoxed Trump. But in several cases, when he took over the interview, they just sat there silently as he lied at length.

A particularly egregious moment came in his false claims about the parallel investigations into his and President Biden’s retention of classified information. Trump told several lies without (successful) interruption. It was an unfortunate missed opportunity for correction, because Trump repeats these lies in his stump speech all the time, and it may be some time before someone competent has the ability to correct them in real time again.

Since Trump is going to keep telling the lie, I’d like to talk about how to fact check it.

Elements of the Offense

It starts with the elements of the offense — the things that prosecutors would have to prove if presenting this case to a jury. While Aileen Cannon has entertained doing fairly novel things with jury instructions, a model jury instruction for 18 USC 793(e), the statute considered with both men, includes the following five elements:

Did the defendant have possession of documents without authorization? The investigations into both Trump and Biden started when the Archives became aware that they had classified documents at their home. Contrary to what Trump said, the Presidential Records Act applies to both him and Biden, insofar as both were required to turn over any document that was a Presidential record when the Administration in which they served ended. That’s the basis of the proof that they had unauthorized possession of the documents that happened to be classified. That said, the PRA has an exception, however, for, “diaries, journals, or other personal notes serving as the functional equivalent of a diary,” which is relevant to why Biden wasn’t charged in two of four items Robert Hur considered charging seriously.

Trump has claimed that he had the ability to convert Presidential Records — even highly classified ones — into personal records, and thereby to take them home. But if this ever goes to trial, prosecutors would show that Trump first espoused that theory, which he got from non-lawyer Tom Fitton, in February 2022, long after the time he would have had to convert the documents to personal records.

Did the document in question relate to the national defense? The question of whether a document is National Defense Information or not is left to the jury to decide. That’s likely one reason why Jack Smith’s team included a bunch of highly classified documents among those charged. Generally, juries are asked to decide whether the government continues to take measures to keep a charged document secret, and whether it has to do with protecting the United States. A number of the documents charged against Trump pertain to either the US or other countries (like Iran’s) nuclear weapons programs.

Did the defendant have reason to believe the information could be used to the injury of the United States or to the advantage of any foreign nation? Generally, prosecutors prove this by pointing to training materials cleared personnel get on classified information, and that’s one reason Jack Smith obtained the letters Trump’s White House sent out about classified information. With both Trump and Biden, however, prosecutors would also rely on their public comments talking about how important it is to protect classified information. In Trump’s case, prosecutors would or will use both the things he said to Mark Meadows’ ghost writer and Susie Wiles when he shared classified information, but also the things he said during the 2016 campaign — targeted at Hillary — about the import of protecting classified information.

Did he keep this document willfully? For both men, prosecutors would need to show that they realized they had classified documents, and then retained them. Given the extended effort to recover documents from Trump, it would be far easier to do for Trump than for Biden.

Did the defendant retain the above material and fail to deliver it to the officer or employee of the United States entitled to receive it? This is an element of the offense that Robert Hur misstated in his report (as I wrote here). It’s not enough to prove that someone willfully retained classified documents he wasn’t authorized to have, you also have to prove he failed to give them back. Normally, this is done (in part) by pointing to someone’s exit interview, when they are read out of their compartments and asked to give everything back. Because Presidents and Vice Presidents don’t have clearance and so aren’t read out of them, it is normally harder to prove that someone affirmatively refused to give documents back. But not in Trump’s case, which is what really distinguishes him from Biden, because the Archives and DOJ kept asking for the documents, including via subpoena, and Trump kept playing games to withhold them.

Theories of Biden Crime

There were four main documents or sets of documents for which Robert Hur considered charging Biden. They don’t include the 50 years of documents Trump described. Those were included in boxes of documents sent to universities; most were barely classified still if at all, and since Biden had given them away, it would be hard to prove he intentionally kept them.

Iran documents: The most sensitive documents found in the Biden investigation were some documents pertaining to Iran found in a box in a closet in Penn Center. Hur determined they had been sent to the Naval Observatory for a meeting Biden had with a bunch of Senators to suss out where they were on Obama’s Iran deal. They may never have gotten moved back to the White House, and were likely stuck in a box and moved to Penn Center by staffers when Biden moved out of the Naval Observatory. These documents were unquestionably Presidential records and National Defense information, but Hur had no evidence Biden knew they were there.

Afghan documents: Hur spent a lot of time trying to prove that, when Biden told his ghost writer during a meeting in his Virginia house on February 16, 2017 that, “I just found all this classified stuff downstairs,” he was referring to several dated folders pertaining to Afghanistan that were found in a ratty box in Biden’s garage in a consensual search. There were many problems with this theory: Hur couldn’t prove that the documents had ever been in the Virginia house (and so could have been downstairs when Biden made the comment); he couldn’t prove that Biden had personally put them in the box where they were found; he couldn’t come up with a compelling argument for why he would have retained them. When Hur included his language about what a forgetful old fogey Biden was, he did so to cover the possibility that Biden forgot he had the documents he hypothetically discovered in 2017 and so didn’t return them at that point, in 2017. But Hur would never have gotten close to where Biden would be relying on faulty memory, because Hur didn’t have very compelling evidence to prove his hypothesis about how the documents got into the garage in the first place, much less that Biden was involved in that process.

Afghan memo: Hur’s extended effort to make a case out of the Afghan documents was particularly difficult given that the best explanation for what Biden was referring to when mentioning classified documents was a 40-page handwritten memo Biden sent Obama in Thanksgiving 2009 to try to dissuade him from surging troops in Afghanistan. (The second best explanation for what Biden was referring to was a set of documents he had recently returned in 2017 when he made the comment.) That memo was found in a drawer in Biden’s office. Biden ultimately admitted to keeping it for posterity, meaning it might fall under the PRA exception for diaries. Because it was handwritten, it had no classification marks and couldn’t be proven to have obviously classified information, much less information still classified in 2023, when it was found.

Diaries: The FBI also found a bunch of notebooks that Biden called diaries and Hur called notebooks. When reading them to his ghost writer, Biden exhibited awareness they included sensitive information, which Hur argued was proof he knew they had classified information. Biden had a very good case to make that these fell under the PRA exception for diaries, as well as decades of precedent, including Ronald Reagan, that DOJ would not charge someone for classified information in his diaries. It would have been impossible to prove that Biden willfully retained something he knew he couldn’t retain, because Biden knew other Presidents and Vice Presidents hadn’t been prosecuted for doing the same exact thing.

There simply was no document or set of documents for which Hur could prove all the elements of offense.

Why You Can Charge Trump

As noted above, the thing that distinguishes Trump from Biden is that Biden found classified documents and invited the FBI to come look for more, making it virtually impossible to prove the final element of offense (the one Hur botched), that Biden refused to give them back.

Trump, by contrast, spent a full year refusing to give documents back, including after DOJ specifically subpoenaed him for documents with classification marks.

There were 32 documents charged against Trump. They include:

  • The document that Trump showed to Meadows’ ghost writers in 2021 and acknowledged was classified; that was returned to NARA in January 2022. You can charge this because prosecutors have a recording of Trump acknowledging it was classified months before he ultimately returned it.
  • Ten documents among those returned in response to a subpoena in June 2022. It’s unclear how Smith intends to prove that Trump knew he had these after he returned the first set of documents in 2021. But most if not all of them date to fall 2019, so he may know why Trump would have retained them. Matt Tait has argued at least some of them pertain to the US withdrawal from Turkey.
  • Ten documents found, in the August 2022 search, in the same box also containing bubble wrap and a Christmas pillow. Among the ten documents was one classified Formerly Restricted, meaning that, under the Atomic Energy Act, Trump could not have declassified it by himself.
  • Five more documents, also found in August 2022, that had been stored in boxes in the storage closet, including the one captured in a picture Walt Nauta took of documents that had spilled out of the boxes.
  • Three documents found during the Mar-a-Lago search in the blue leather bound box found in the closet in Trump’s office. At least a few of these likely pertain to Trump’s withdrawal from the Iran deal. These are likely documents that Trump referred to.

For every charged document besides the Iran one, then, prosecutors can show that Trump withheld the documents after he first returned documents in January 2021. Trump will certainly argue that he may not have known he had those specific documents. But Trump’s decision to end his sorting process in January 2021 and his efforts to thwart Evan Corcoran’s June 2022 search will go a long way to prove intent.

How Trump’s Case Got Dismissed

Trump falsely claimed he “won” his classified documents case. That’s false: Aileen Cannon dismissed it, just in time for the RNC. Her argument that Jack Smith was unconstitutionally appointed isn’t even the primary one that Trump’s attorneys were making: that Smith required Senate approval and that his funding was improper. Rather, she argued that Merrick Garland simply didn’t have the authority to appoint Smith in the way he did.

There are several reasons the distinction is important.

First, if SCOTUS upholds Cannon’s theory, then it will hold for all similar appointments. That extends unquestionably to Hur’s appointment, because like Smith he was a non-DOJ employee when appointed. It likely also extends to Alexander Smirnov, into whom most investigative steps occurred after David Weiss was appointed as a Special Counsel under the same terms as Smith and Hur, and whose alleged crimes happened somewhere besides Delaware. Whether it applies to Hunter Biden is a closer question: Judge Mark Scarsi seems poised to argue that since Weiss had already charged Hunter, his appointment is different (and given the way Scarsi has worked so far, I don’t rule out him trying to find a way to make this unappealable).

In other words, if the steps Jack Smith took after November 2022 were unconstitutional, then it means everything Hur did after January 2023 was also unconstitutional. If Trump “won,” then he needs to stop making any claims about Hur’s interview with Biden, because it was unconstitutional.

More importantly, not even Aileen Cannon has ruled that Trump didn’t knowingly and intentionally retain classified documents. All she has ruled is that if DOJ wants to charge him for it, they need to recreate the investigative steps completed since November 2022, under the review of US Attorney for Southern Florida Markenzy Lapointe.

In Bid to Withhold Laptop and Hard Drive Forensic Reports, Derek Hines Misstates Hunter Biden’s View on Authenticity of Data on Laptop

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As I noted in this post, I wrote a letter to Judge Maryellen Noreika asking her to release several documents, the more interesting of which are the forensic reports on the laptop attributed to Hunter Biden and the hard drive with John Paul Mac Isaac’s purported copy of the laptop.

Abbe Lowell had no problem with the release of the forensic reports.

Mr. Biden has no objection to the release of either item requested by the journalist—the motion for miscellaneous relief at DE 167 and/or the expert disclosure of Michael Waski at DE 120-2.

Derek Hines did. He said that because he never filed the forensic reports, they are not judicial records before Judge Noreika.

However, his disclosure was never filed with the Court because the defendant agreed that the information derived from his laptop was authentic. Therefore, the expert disclosure was not included as an exhibit for ECF 120 because the certification itself sufficiently supported the motion. Moreover, since there was no dispute about the authenticity of the information derived from the defendant’s laptop, the government did not call Mr. Waski as an expert witness at trial. Accordingly, the expert disclosure is not a judicial record and is not a record before this Court that the Court could unseal.

There are several problems with this response.

First, as I wrote in my letter, nothing in the certification mentioned the laptop or hard drive it certified.

Mr. Waski’s certification, as docketed, does not by itself certify that the laptop was among the devices extracted. While the MIL describes that Mr. Waski’s certification pertains to, “two backup files from laptop and hard drive” (DE 120 at 3), Mr. Waski’s certification itself mentions neither. Instead, it references a “Digital Forensics Report and [an] Extraction Report,” singular. Compare Robert Gearhart’s certification at DE 120-1, which lists the four iCloud backups described in the MIL, “Apple Backup 1, Apple Backup 2, Apple Backup 3, Apple Backup 4,” which in turn match the warrant. (20-mj-165 DE 3 at 2) To confirm that Mr. Waski’s certification pertains to the laptop and hard drive incorporated into the summary and described in the warrant (19-mj-309 DE 3) requires inspecting the Disclosure.

There is no way the public — or Judge Noreika herself — can be certain that the “Digital Forensics Report and Extraction Report,” singular, mentioned in the certification describes the forensics of both (or either!) the laptop and the hard drive. We need to see the description of that report in the Disclosure itself.

The certification relies on the Disclosure to even identify what it is certifying.

More importantly, Hines blatantly misstates Hunter Biden’s view on the authenticity of the data on the laptop. In Abbe Lowell’s response to Hines’ motion to bypass any expert witness, he specifically debunked that claim.

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.

He pointedly did not agree that the data derived from the laptop (and hard drive, which I suspect has more irregularities) was “authentic” as to being his own data.

One reason I’m interested in the hard drive is because Hines himself revealed that the “backup” of it is 62% bigger than the laptop of which it purports to be a copy. Understanding why that is so might go a long way to explain anything John Paul Mac Isaac did with Hunter Biden’s data.

As I noted in my letter to Judge Noreika, Congressman Dan Bishop suggested in a deposition on the laptop last year that if the FBI, “has conducted a forensic investigation and has suppressed the results,” people shouldn’t defer to the FBI. This was an opportunity for the FBI to show it’s work.

It — or at least, David Weiss — doesn’t want to.

Update: Corrected misspelling of Hines’ last name. My apologies to him.

Update: Judge Noreika has now docketed my reply. Among other things, I noted that the creation date for the PDF of Waski’s certification post-dates the day when it was sent to Hunter Biden’s team on April 24.

 

The other certification is dated April 23.

Update: Judge Noreika has, unsurprisingly, granted the request to docket the Hallie Biden related filing, but denied the Disclosure on the laptop and hard drive.

ORAL ORDER re: D.I. [247], IT IS HEREBY ORDERED that the Sealed Motion (DI [167]) is hereby unsealed. The expert disclosure of Michael Waski is not part of the record of this case or in the Courts possession. IT IS HEREBY FURTHER ORDERED that the Court will not address further informal requests made by letter rather than appropriate motion. Ordered by Judge Maryellen Noreika on 7/18/2024. (as)

 

emptywheel Writes Letters: The FBI Extraction of the Hunter Biden Hard Drive Is 62% Bigger than the Laptop

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As I did in January, I’ve written a letter asking Judge Maryellen Noreika to liberate two documents, the more interesting of which are the forensic reports FBI did of the Hunter Biden laptop and the hard drive John Paul Mac Isaac made of the laptop. (Yes, I know it has my personal information.)

In a key passage explaining the significance of the two forensic reports, I noted that the extraction of the hard drive that purports to be a copy of the laptop is 62% bigger than extraction of the laptop itself.

In the motion in limine in support (“MIL”) of introducing those communications via summary report (DE 120), SCO relied on the expert certification of Michael Waski, a Senior Digital Forensic Examiner who, as a Forensic Analyst, was involved in exploiting the laptop in 2019. Accompanying the MIL, SCO provided Mr. Waski’s certification, which in turn incorporates by reference his expert Disclosure. (DE 120-2) The only reasons given why SCO did not docket expert Disclosures themselves were, “because those documents are voluminous and because the defendant agrees these files are self-authenticating.” Nevertheless, Mr. Waski’s certification describes his Disclosure as, “attached hereto.” 

Mr. Waski’s certification, as docketed, does not by itself certify that the laptop was among the devices extracted. While the MIL describes that Mr. Waski’s certification pertains to, “two backup files from laptop and hard drive” (DE 120 at 3), Mr. Waski’s certification itself mentions neither. Instead, it references a “Digital Forensics Report and [an] Extraction Report,” singular. Compare Robert Gearhart’s certification at DE 120-1, which lists the four iCloud backups described in the MIL, “Apple Backup 1, Apple Backup 2, Apple Backup 3, Apple Backup 4,” which in turn match the warrant. (20-mj-165 DE 3 at 2) To confirm that Mr. Waski’s certification pertains to the laptop and hard drive incorporated into the summary and described in the warrant (19-mj-309 DE 3) requires inspecting the Disclosure.

Beyond that issue of completeness, Mr. Waski’s Disclosure holds additional significant public interest: (1) it would reaffirm the integrity of these proceedings, (2) it might address concerns raised in two separate Congressional investigations incorporating Mr. Biden’s devices (3) it would provide insight into derivative hard drives that have been the subject of controversy for years.

Some background explains why. The FBI obtained the two devices referenced in the MIL from computer repairman John Paul Mac Isaac. (19-mj-309 DE 3) One device, introduced into evidence as GTX16, is a MacBook Pro. The other device, a Western Digital hard drive, purports to be a copy that Mr. Mac Isaac made of the laptop; that copy is, in turn, the source of a number of other hard drives disseminated publicly, including to Congress, since 2020.

Because the hard drive purports to be a copy of the laptop, the content on those devices should substantially match. Yet the MIL suggests it may not. According to SCO, the “backup file” of the laptop (the original source) consists of 4,198 pages (DE 120 at 5). The “backup file” of the hard drive derived from the laptop (the purported copy) consists of 6,801 pages (Id.). In other words, the extracted copy made of the laptop is 62% larger, measured in pages, than the extracted original source. SCO’s office provided no response to an inquiry regarding the significant size difference in these backup files. [my emphasis]

Judge Noreika has asked the two sides to weigh in on these requests by end of day.

ORAL ORDER re Letter ( 247 ): IT IS HEREBY ORDERED that, by the close of business today, the parties shall provide the Court with their respective positions on the request for the unsealing of the two documents referenced in the letter. ORDERED by Judge Maryellen Noreika on 7/17/2024. (mdb) (Entered: 07/17/2024)

Imagine if Dana Bash Knew Trump Had Been President Before?

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After letting Donald Trump lie non-stop in the debate, Dana Bash invited his aspiring running-mate, Marco Rubio, onto her show to  tell the same lies.

Ostensibly, she was asking Rubio about whether the Supreme Court immunity decision violated Rubio’s own stated dodge on accountability for January 6: “let history, and if necessary, the courts judge the events of the past.”

But Rubio quickly took over the segment, spending 37 seconds, and then another 22 seconds, falsely claiming that Joe Biden’s Administration was using DOJ as a legal weapon against Donald Trump. Rubio claimed, “The evidence is in the headlines every day. Every you day you open up it’s another Republican going to jail somewhere.” Bash let Rubio drone on at length, before interrupting to state there’s no evidence that Biden is doing this.

Worse still was Bash’s failure to rebut Rubio’s lies about Donald Trump’s first term. Rubio claimed, “I can’t think of a single prominent Democrat who was chased around, persecuted, prosecuted.” He followed up, “He was President for four years, he didn’t go after Hillary Clinton, he didn’t go after Joe Biden, he didn’t go after Barack Obama, he didn’t go after any other consultants. We didn’t see under him what we’re seeing now.” In one uncomfortable moment, Rubio cited the debate at which Bash had let Trump lie over and over about his future plans to criminalize his opponents, as if it represented the truth. Rubio then stated again that Trump, “was President before and he didn’t do it then.”

Those are all lies.

Those are all lies that Bash has a responsibility to debunk.

After Trump demanded it, Hillary Clinton remained under investigation — based off Peter Schweizer’s political hit job, Clinton Cash — for the entirety of Trump’s term, with a declination memo issuing only in August 2021.

Career prosecutors in Little Rock then closed the case, notifying the F.B.I.’s office there in two letters in January 2021. But in a toxic atmosphere in which Mr. Trump had long accused the F.B.I. of bias, the top agent in Little Rock wanted it known that career prosecutors, not F.B.I. officials, were behind the decision.

In August 2021, the F.B.I. received what is known as a declination memo from prosecutors and as a result considered the matter closed.

“All of the evidence obtained during the course of this investigation has been returned or otherwise destroyed,” according to the F.B.I.

Rubio mentioned, “consultants.” After Trump demanded prosecutions from John Durham, Durham indicted DNC cybersecurity lawyer Michael Sussmann on flimsy charges. When Durham wildly misrepresented a report Sussmann made — showing the use of Yota phones inside Executive Office of the Presidency during the Obama Administration — Trump even issued suggested Sussmann should be put to death.

Yes, Sussmann was acquitted, but not before leaving his firm and spending untold legal fees to defend against a manufactured indictment and death threats from the former President.

Bash even seems ignorant of the first impeachment, in which Trump withheld funds appropriated to Ukraine in an attempt to extort the announcement of an investigation into Joe Biden and his kid.

On at least two more occasions, Donald Trump personally intervened into the criminal investigation of Joe Biden’s son. One was shortly after the NYPost unveiled material from a hard drive copy of a laptop attributed to Hunter Biden (as described in Bill Barr’s memoir), days before the 2020 election.

In mid-October I received a call from the President, which was the last time I spoke to him prior to the election. It was a very short con-versation. The call came soon after Rudy Giuliani succeeded in making public information about Hunter Biden’s laptop. I had walked over to my desk to take the call. These calls had become rare, so Will Levi stood nearby waiting expectantly to see what it was about. After brief pleasantry about his being out on the campaign trail, the President said, “You know this stuff from Hunter Biden’s laptop?”

I cut the President off sharply. “Mr. President, I can’t talk about that, and I am not going to.”

President Trump hesitated, then continued in a plaintive tone, “You know, if that was one of my kids—”

I cut him off again, raising my voice, “Dammit, Mr. President, I am not going to talk to you about Hunter Biden. Period!”

He was silent for a moment, then quickly got off the line.

I looked up at Will, whose eyes were as big as saucers. “You yelled at the President?” he asked, confirming the obvious. I nodded. He shook his head in disbelief.

Trump intervened again on December 27, 2020, when — during the conversation where Trump first threatened to replace Jeffrey Rosen if he didn’t back Trump’s false claims of election fraud — Trump also said, “people will criticize the DOJ if [Biden, to which Richard Donoghue added an “H” after the fact] not investigated for real.”

These non-public demands regarding the investigation into Hunter Biden accompanied public demands to “Lock him up!” Trump even raised Hunter Biden in between calls to march to the Capitol on January 6.

But Bash’s worst failures involve doing an interview with the Ranking Member of the Senate Intelligence Committee and not asking him about two investigations conducted under Bill Barr that implicate confirmed and suspected disinformation with Russian ties.

As part of Barr’s effort to investigate Hillary Clinton for calling out Donald Trump’s embrace of Vladimir Putin, for example, starting in 2020 (as Trump demanded results), the Attorney General and John Durham relied on materials obtained from Russia that the Intelligence Community considered likely disinformation, a claim that Hillary had made a decision to “to vilify Donald Trump by stirring up a scandal claiming interference by Russian security services.” As it is, there’s a dispute about the use of those materials, with John Brennan, claiming in his House deposition last May that this claim involved a misrepresentation of what happened.

Mr. Brennan. Not out of hand, but I think it was — a week or two prior to that, there was a selective release of information that included my briefing notes to President Obama in the White House Situation Room that was misrepresenting, in fact, the facts, where it was pushed out in redacted version. And I did think that was a very, very unfortunate, unprofessional, unethical engagement on the part of the Director of National Intelligence in a Presidential election.

Marco Rubio is one person who could weigh in this dispute.

But Durham didn’t stop there. He then fabricated a claim that wasn’t included in the suspected Russian disinformation: That Hillary planned to make false claims about Trump’s fondness for Russia.

First, the Clinton Plan intelligence itself and on its face arguably suggested that private actors affiliated with the Clinton campaign were seeking in 2016 to promote a false or exaggerated narrative to the public and to U.S. government agencies about Trump’s possible ties to Russia.

At a time when Trump was publicly demanding results from Durham, then, the Special Counsel made shit up, politicizing intelligence, in an attempt to find charges against Hillary Clinton.

Bash let Rubio claim it didn’t exist.

Then there’s the blockbuster of which political journalists like Bash (and her colleague, Kaitlan Collins) appear aggressively ignorant.

In January 2020 (this was in the same time period he and Durham were fabricating claims about Hillary Clinton), Bill Barr set up a side channel to ingest dirt from Rudy Giuliani, including some from known Russian spy Andrii Derkach. Via still unexplained means, that side channel discovered false claims made by FBI informant Alexander Smirnov, who has subsequently claimed to have extensive ties to Russian spies. Even though the claim was easily debunked, that dedicated side channel nevertheless failed to discover real problems with the fabricated claim that Joe Biden had been bribed by Mykola Zlockevsky. Indeed, days after Trump pressured Bill Barr about investigating Hunter Biden,  on October 23, 2020, Richard Donoghue ensured the fabricated claim would be assigned to David Weiss for further investigation.

Worse still, through the efforts of Republican congressmen and Bill Barr, that fabricated claim of a Joe Biden bribe appears to have played a key role in the collapse of Hunter Biden’s plea deal and subsequent felony conviction.

For the entirety of the time that these twin efforts to use suspected Russian disinformation to frame Hillary Clinton and Joe Biden, Marco Rubio has been either Chair or Ranking Member of the Senate Intelligence Committee — one of the few people who can demand answers when the nation’s intelligence and counterintelligence system is so badly abused that Donald Trump’s political enemies can be framed, potentially in cahoots with Russian spies.

And Dana Bash had Marco Rubio sitting right there, in a position where she, in turn, could demand answers.

Instead, she let him lie and lie and lie about Trump’s past efforts to criminalize his political rivals.

Hunter Biden is on his way to prison in significant part because of Trump’s success at criminally targeting his political enemies. And Dana Bash never told viewers that Trump already has a documented record of doing just that.

Spirit of Revenge: John Roberts Says Joe Biden Can Demand an Investigation of Ginni Thomas

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As I wrote in this post, John Roberts chose to cloak his radical opinion eliminating rule of law for Presidents by nodding to George Washington’s Farewell Address.

Our first President had such a perspective. In his Farewell Address, George Washington reminded the Nation that “a Government of as much vigour as is consistent with the perfect security of Liberty is indispensable.” 35 Writings of George Washington 226 (J. Fitzpatrick ed. 1940). A government “too feeble to withstand the enterprises of faction,” he warned, could lead to the “frightful despotism” of “alternate domination of one faction over another, sharpened by the spirit of revenge.” Id., at 226–227. And the way to avoid that cycle, he explained, was to ensure that government powers remained “properly distributed and adjusted.” Id., at 226.

It is these enduring principles that guide our decision in this case.

As I showed, that was partly an attempt to spin the usurpation of Executive Branch prosecutorial authority between Administrations as, instead, protection of the separation of powers of co-equal branches.

But it was also an attempt to deploy Washington’s warnings against partisanship as if they counseled doing what Roberts was doing, rather than the opposite.

Roberts had the audacity, for example, to quote from a passage talking about how unbridled partisanship could lead to foreign influence, corruption, insurrection, and authoritarianism and suggest he was preventing that, rather than immunizing it.

I have already intimated to you the danger of parties in the state, with particular reference to the founding of them on geographical discriminations. Let me now take a more comprehensive view and warn you in the most solemn manner against the baneful effects of the spirit of party, generally.

This spirit, unfortunately, is inseparable from our nature, having its root in the strongest passions of the human mind. It exists under different shapes in all governments, more or less stifled, controlled, or repressed; but in those of the popular form it is seen in its greatest rankness and is truly their worst enemy.

The alternate domination of one faction over another, sharpened by the spirit of revenge natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries which result gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation on the ruins of public liberty.

Without looking forward to an extremity of this kind (which nevertheless ought not to be entirely out of sight) the common and continual mischiefs of the spirit of party are sufficient to make it the interest and the duty of a wise people to discourage and restrain it.

It serves always to distract the public councils and enfeeble the public administration. It agitates the community with ill founded jealousies and false alarms, kindles the animosity of one part against another, foments occasionally riot and insurrection. It opens the door to foreign influence and corruption, which find a facilitated access to the government itself through the channels of party passions. Thus the policy and the will of one country are subjected to the policy and will of another. [my emphasis]

As I described in the initial release of Ball of Thread, the podcast I’m doing with LOLGOP, the Republicans on SCOTUS really believe Trump’s garbage claims that his prosecution was about revenge and despotism, rather than an effort to stave it off.

Trump has gotten people who claim to care about the country to view up as down, fascism as freedom.

Never mind that a court riddled with corruption scandals invoked the passage of the Farewell Address warning against it.

Between the shock of the overall holding and the obsession with Joe Biden’s poor debate, though, there has been little focus on an equally troubling part of Roberts’ opinion: one sanctioning the wholesale politicization of DOJ.

In the passage throwing out the charges involving Jeffrey Clark altogether, Roberts prohibits review of not just DOJ’s prosecutorial decisions (except, of course, when they involve a President’s predecessor, in which case DOJ has very constrained authority), but also of the President’s involvement in those decisions.

The Government does not dispute that the indictment’s allegations regarding the Justice Department involve Trump’s “use of official power.” Brief for United States 46; see id., at 10–11; Tr. of Oral Arg. 125. The allegations in fact plainly implicate Trump’s “conclusive and preclusive” authority. “[I]nvestigation and prosecution of crimes is a quintessentially executive function.” Brief for United States 19 (quoting Morrison v. Olson, 487 U. S. 654, 706 (1988) (Scalia, J., dissenting)). And the Executive Branch has “exclusive authority and absolute discretion” to decide which crimes to investigate and prosecute, including with respect to allegations of election crime. Nixon, 418 U. S., at 693; see United States v. Texas, 599 U. S. 670, 678–679 (2023) (“Under Article II, the Executive Branch possesses authority to decide ‘how to prioritize and how aggressively to pursue legal actions against defendants who violate the law.’” (quoting TransUnion LLC v. Ramirez, 594 U. S. 413, 429 (2021))). The President may discuss potential investigations and prosecutions with his Attorney General and other Justice Department officials to carry out his constitutional duty to “take Care that the Laws be faithfully executed.” Art. II, §3. And the Attorney General, as head of the Justice Department, acts as the President’s “chief law enforcement officer” who “provides vital assistance to [him] in the performance of [his] constitutional duty to ‘preserve, protect, and defend the Constitution.’” Mitchell v. Forsyth, 472 U. S. 511, 520 (1985) (quoting Art. II, §1, cl. 8).

Investigative and prosecutorial decisionmaking is “the special province of the Executive Branch,” Heckler v. Chaney, 470 U. S. 821, 832 (1985), and the Constitution vests the entirety of the executive power in the President, Art. II, §1. For that reason, Trump’s threatened removal of the Acting Attorney General likewise implicates “conclusive and preclusive” Presidential authority. As we have explained, the President’s power to remove “executive officers of the United States whom he has appointed” may not be regulated by Congress or reviewed by the courts. Myers, 272 U. S., at 106, 176; see supra, at 8. The President’s “management of the Executive Branch” requires him to have “unrestricted power to remove the most important of his subordinates”—such as the Attorney General—“in their most important duties.” Fitzgerald, 457 U. S., at 750 (internal quotation marks and alteration omitted).

The indictment’s allegations that the requested investigations were “sham[s]” or proposed for an improper purpose do not divest the President of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials. App. 186–187, Indictment ¶10(c). And the President cannot be prosecuted for conduct within his exclusive constitutional authority. Trump is therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials. [my emphasis]

Here, Roberts turns the Take Care Clause on its head. Whereas conservative judge Karen Henderson viewed the Take Care Clause to require that the President obey the law, Roberts instead sees that as a source of permission for the President to demand investigations, even if they are proposed for an improper purpose.

In doing so, Roberts gives Joe Biden permission to demand an investigation of Ginni Thomas for the purpose of revenge against her spouse.

To be sure, in spite of Roberts’ expansive permission for President’s to politicize DOJ, there appear to be limits. Joe Biden cannot order the IRS to review whether Clarence Thomas has written off all the undeclared boondoggles Harlan Crow has given him.

One of the only laws specifically mention the President, it turns out, is 26 USC 7217, which prohibits certain people, including the President himself, from asking the IRS to take investigative action against a taxpayer.

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

(b)Reporting requirement
Any officer or employee of the Internal Revenue Service receiving any request prohibited by subsection (a) shall report the receipt of such request to the Treasury Inspector General for Tax Administration.

[snip]

(e)Applicable person
For purposes of this section, the term “applicable person” means—
(1)the President, the Vice President, any employee of the executive office of the President, and any employee of the executive office of the Vice President; and

This law could one day, in the not-too-distant future, come before the Justices. It could even do so in the specific context at issue here, Donald Trump’s pressure on Jeffrey Rosen on December 27, 2020.

That’s because, as laid out in Hunter Biden’s selective and vindictive prosecution claim, in the very same conversation where Trump demanded that DOJ make false claims about election fraud, he also pressured Rosen to investigate Hunter Biden “for real.”

On December 27, 2020, then Acting Deputy Attorney General Richard Donoghue took handwritten notes of a call with President Trump and then Acting Attorney General Jeffrey Rosen, showing that Mr. Trump had instructed Mr. Rosen and Mr. Donoghue to “figure out what to do with H[unter] Biden” and indicating that Mr. Trump insisted “people will criticize the DOJ if he’s not investigated for real.”57

57 Dec. 27, 2020 Handwritten Notes of Richard Donoghue Released by H. Oversight Comm. at 4 (emphasis added), www.washingtonpost.com/context/read-richard-donoghue-s-handwrittennotes-on-trump-rosen-calls/cdc5a621-dfd1-440d-8dea-33a06ad753c8; see also Transcribed Interview of Richard Donoghue at 56 (Oct. 1, 2021), H. Oversight Comm., https://www.govinfo.gov/content/pkg/GPO-J6-TRANSCRIPT-CTRL0000034600/pdf/GPO-J6- TRANSCRIPT-CTRL0000034600.pdf.

Hunter Biden’s as-applied challenge to his gun charges are more likely to get to SCOTUS and do so more quickly.

But his prosecution, with the President privately and publicly intervening both as President and as candidate to replace his father raises fairly unprecedented questions about the due process rights of a person whom the President has demanded be investigated for the purpose of revenge.

Until such a case gets reviewed, however, John Roberts has invited Joe Biden to call up Merrick Garland and demand not just that DOJ open an investigation into Ginni Thomas, but to appoint a Special Counsel who could continue the investigation for the foreseeable future.

By refusing all review of improper pressure on the Attorney General, John Roberts has not eliminated the risk of revenge and despotism.

He has, rather, sanctioned it.

“Double Jeopardy Protection … Is [Hunter Biden’s] Right”

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“Mr. Biden took the case to trial,” Abbe Lowell wrote in a reply brief arguing that an June 25, 2022 amendment to the statute that previously made 18 U.S.C. § 922(g)(3) a crime made the possession charge filed against Hunter non-viable retroactively, “so that either by conviction or acquittal from the jury or by this Court, he would have double jeopardy protection against future prosecutions. That is his right.”

The means by which Lowell hopes to make the third count of which Hunter was convicted go away are a bit tricker than that: basically, when Congress changed the gun law in 2022, they added another one, increasing the penalty on the charge. But there was no way (Lowell argues) to charge Hunter under a law enacted four years after he owned a gun if he hadn’t already been charged.

The Special Counsel’s invocation of the 1871 savings clause now found in 1 U.S.C. § 109 is off base, because that statute only saves prosecutions that already had been filed when the law was amended. It does not allow the Special Counsel to bring new prosecutions post-amendment based on conduct that violated a pre-amendment statute, which is exactly what the Special Counsel has done. Not only does the language of Section 109 itself make this clear, but the 153-year history since the statute was enacted confirms this reading. Congress regularly attaches savings clauses to legislation to allow new prosecutions to be brought for violations of prior law, when it chooses to do so, and it did not do so here.

As I said here, I was persuaded by Derek Hines’ argument that this complaint is untimely. I’m no longer so sure.

What I am humbly reconsidering, though, is whether when I scolded others for oversimplifying the reasons why Hunter would go to trial, I was not myself also oversimplifying.

Take the new motion Lowell filed today (though he accidentally posted, then withdrew it, last week), arguing that because the Third Circuit never issued a mandate after rejecting Hunter’s second bid for interlocutory appeal, Maryellen Noreika did not have jurisdiction over this case when she held a trial.

The Third Circuit entered an order dismissing Mr. Biden’s second appeal on May 28, 2024, and denied Mr. Biden’s rehearing petition on the first appeal on May 31, 2024. The Third Circuit, however, did not then and has not yet issued its mandate as to the orders dismissing either appeal. Thus, when this Court empaneled the jury on June 3, 2024 and proceeded to trial, it was without jurisdiction to do so.

This particular motion would not win an acquittal if it were to succeed. It would only get Hunter a new trial.

But if Lowell was really confident that this jurisdictional ploy would work, it might explain some of the things he appeared to let slide at trial. If Lowell expected he might get a second trial, potentially even one with the core gun charge eliminated, he might let some things slide he otherwise would not, thereby preserving those arguments for a potential second trial.

That leaves the substantive reply submitted today, Lowell’s post-Rahimi support for Hunter’s as-applied Second Amendment challenge, which like Derek Hines’ response, is longer than his initial Rule 29 motion (though the reply is still have the length of Hines’ response).

This fight — because of the nearly unique nature of the charges against a non-violent offender like Hunter, because of the circumstances of his charging, because of the timing — was always going to be interesting.

It does not disappoint.

This filing mocks SCOTUS as much as David Weiss’ folks.

The Special Counsel often relies on post-Founding Era purported precedents, but those come too late to inform what was intended by those who ratified the Second Amendment. As Rahimi explained: “A court must ascertain whether the new law is ‘relevantly similar’ to laws that our tradition is understood to permit, ‘apply[ing] faithfully the balance struck by the founding generation to modern circumstances.’” Slip op. at 7 (quoting N.Y. State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1, 29 & n.7 (2022); see also Slip op. at 3 (Gorsuch, J. concurring) (noting the relevant timeframe is the time of founding for interpreting the Constitution); Slip op. at 2 (Barrett, J., concurring) (explaining post-ratification practice may not reflect Founding Era views); Slip op. at 28 (Thomas, J., dissenting).

But the key point does something similar to the other tactical moves Lowell took today: It uses Leo Wise and Derek Hines’ prosecutorial dickishness against them. It notes that, against Lowell’s wishes, Judge Noreika granted prosecutors’ bid to keep all Second Amendment claims out of trial.

It was only told to find whether the statutes as written were violated—without any further finding necessary to satisfy the Second Amendment. 6/10/24 Tr. at 1298. In fact, the Special Counsel sought, and this Court granted, a motion in limine to prevent reference to a Second Amendment defense. D.E.189 at 3 (Order granting government’s motion (D.E.124) to exclude argument, evidence and questioning relating to the constitutionality of the firearm statute). The Sixth Amendment prevents Mr. Biden’s conviction from resting upon any judge found facts, those facts must be found by a jury beyond a reasonable doubt, and—over Mr. Biden’s objection—the jury was not even asked to find the facts necessary for his conduct to be a crime consistent with the Second Amendment. Erlinger, Slip op. at 11 (“Judges may not assume the jury’s factfinding function for themselves, let alone purport to perform it using a mere preponderance-of-theevidence standard.”).

It emphasizes that Derek Hines instructed the jury from the start that they were not to consider the one thing SCOTUS says should be considered: whether an individual is dangerous.

Beyond advancing this erroneous legal theory (or “invented” theory, according to Justice Thomas, Slip op. at 28 (Thomas, J., dissenting)), the Special Counsel is simply wrong in claiming that Mr. Biden posed any risk of violence. We do not quarrel with the Special Counsel’s claims and statistics that many users of crack are violent and have misused guns, but—while the Special Counsel has extensively chronicled Mr. Biden’s conduct over several years of crack use—the Special Counsel has not identified a single time in which Mr. Biden became violent. Not one. And there is no evidence whatsoever that Mr. Biden ever loaded, fired, brandished, or threatened anyone with a gun, or that it was ever even in his actual physical possession at any time in which he was allegedly using any drug.

Mr. Hines conceded this point in his opening:

To be clear, Mr. Biden is not charged with a violent offense, the gun was taken from him just after 11 days before anything like that could occur. But it’s important to note that whether the defendant is dangerous is not an issue that’s relevant for your determinations in this case. He’s just charged with possession of a gun. 6/4/24 Tr. at 341 (emphasis added).

Not only is this an acknowledgment that no violent offense did “occur,” Mr. Hines told the jury it would not be making any finding as to “whether the defendant is dangerous.” Id. And he was right about that—nothing in the jury instructions asked the jury to find whether Mr. Biden was dangerous. Thus, even if this is an element of the offense that must be read into the statute to make it constitutional, the jury was not asked to find this element met as is required by the Sixth Amendment.

And it notes that Derek Hines cannot now argue that Hunter Biden was dangerous categorically.

The Special Counsel devotes much of its opposition to claiming that Mr. Biden’s drug use made him dangerous(D.E.234 at Sec. I.B.), but Rahimi clearly rejected the government’s argument that this is a basis for disarmament. A more particularized historical analogy is required. As the Supreme Court explained in Rahimi, while “holding that Section 922(g)(8) is constitutional as applied to Rahimi,” the Court “reject[ed] the Government’s contention that Rahimi may be disarmed simply because he is not ‘responsible.’” Slip op. at 17; see Slip op. at 6 (Gorsuch, J., concurring) (“Nor do we purport to approve in advance other laws denying firearms on a categorical basis to any group of persons a legislature happens to deem, as the government puts it, not ‘responsible.’”) (emphasis added). At oral argument, the government explained that “when it used the term ‘responsible’ in its briefs, it really meant ‘not dangerous.’” Slip op. at 28 (Thomas, J. dissenting) (emphasis in original). With respect to this argument “that the Second Amendment allows Congress to disarm anyone who is not ‘responsible’ and ‘law-abiding,’” Justice Thomas emphasized: “Not a single Member of the Court adopts the Government’s theory.” Id. at 27. To highlight thisfact, Justice Gorsuch requoted Justice Thomas’ point in his concurrence. Slip op. at 6 (Gorsuch, J., concurring) (“Not a single Member of the Court adopts the Government’s theory”).

The reason for that is self-evident. The Government’s proposed justification is also far too general. Nearly all firearm regulations can be cast as preventing ‘irresponsible’ or ‘unfit’ persons from accessing firearms. In addition, to argue that a law limiting access to firearms is justified by the fact that the regulated groups should not have access to firearms is a logical merry-goround. As the Court has made clear, such overly broad judgments cannot suffice.

Slip op. at 15 (Thomas, J., dissenting).

It’s the jury’s job to make findings of fact that might be required by SCOTUS’s fiddling with gun laws.

The Special Counsel devotes much of his brief to arguing the facts, but he is directing his repeated closing argument to the wrong forum. This Court properly told the jury that “you are the sole judges of the facts,” and this jury was not asked to find the constitutionally relevant facts.

This won’t persuade Judge Noreika. But it will bollox the posture of this case, particularly if Hunter wins a retrial based on the jurisdictional ploy. What kind of jury instructions would Noreika give, post-Rahimi?

Finally, Lowell notes that if SCOTUS eventually does change the rules on 18 USC 922(g)(3) prosecutions — perhaps by requiring that a jury find a defendant also posed a danger as an addict — Hunter would never have had notice of this standard before he violated it.

That begs the question:* where is this line that separates not only what is legal from what is illegal, but where the exercise of a constitutionally protected right becomes a felony? How does a person have fair notice of when he or she is allowed to possess a firearm if they used a prohibited substance a day, a week, a month or, as the Special Counsel argued, years before? This Court has not said, and the jury that would have to find a constitutionally permissible charge to convict was not told either. In other words, whatever more facts must be proven beyond Section 922(g)(3)’s statutory language for a conviction to be proven—such as active intoxication while physically armed and terrorizing people—remains an unknown and were never found by the jury.

Moreover, once the Court does announce where this line exists, that guidance is only of value to the people of Delaware prospectively. It comes too late for people like Mr. Biden to be able to conform their conduct within the constitutional bounds of the law previously. Thus, while courts may impose limiting constructions on a statute to resolve constitutional problems with them in some circumstances, principles of due process notice prevent those new standards from being applied retroactively. See, e.g., Marks v. United States, 430 U.S. 188, 194–95 (1977); Bouie v. City of Columbia, 378 U.S. 347, 362 (1964). Additionally, when courts add a judicial gloss on a statute, that gloss must be charged in an indictment like any other element. See, e.g., Simmons, 96 U.S. at 363. There is no point in saving a statute from being found unconstitutional through a limiting construction if the grand jury that makes a charging decision and the jury that is asked to convict are never told what is required by a court’s limiting construction. Consequently, if the Court finds that the Second Amendment places a gloss on Section 922(g)(3) that narrows the constitutionally permissible scope of the statute, Mr. Biden must be acquitted on that ground alone.

None of this is about contesting the circumstances of Hunter’s addiction when he possessed a gun. Rather, it’s about contesting whether his addiction would be enough to satisfy any new standard SCOTUS might adopt.

But these problems were always inherent in charging a non-violent offender on gun charges just days before the statutes of limitation expired even as multiple post-Bruen challenges threatened to change the landscape of the crimes charged.

This won’t win acquittal on all charges for Hunter. But it may well complicate things.

* Note: Having called out Judge Scarsi for his misuse of “begs the question,” I must call out Lowell’s usage here, too.

Derek Hines Ensures that Two Likely Appeals Will Implicate His False Claims about Hunter Biden’s New Haven Crack Pipe

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Hunter Biden filed three Rule 29 motions after the government rested in its case in chief against him in Delaware: a motion claiming there was insufficient evidence against him that is a formality in advance of other appeals, a claim about a recent change in the gun law that David Weiss convincingly argued is untimely, and his promised Second Amendment as-applied challenge.

While I disagree with virtually every commentator that a Second Amendment challenge is Hunter’s best chance at overturning his conviction, the as-applied challenge, more than his more general Second Amendment challenge, may prove important in years ahead– and it will take years, not least because Judge Noreika is unlikely to grant this challenge.

After all, one thing that makes Hunter’s prosecution almost unique is that there was and is no other legal judgment to implicate a tie between his addiction and the purchase of the gun, such as a related crime. There was no legal fact-finding, as there had been in imposing the restraining order on Rahimi, that he posed a threat. No court had found Hunter’s addiction to pose a threat to others. When a Biden-hating cop interviewed him after Hallie filed a police report, that cop did not prosecute — or even test — Hunter for doing drugs in the recent days.

On Friday, hours after the Supreme Court ruled against Zackey Rahimi’s challenge to restrictions on domestic abusers’ gun ownership, Derek Hines filed Special Counsel’s opposition to Hunter’s as-applied challenge. Unsurprisingly (and uncontroversially), the opposition relies heavily on Rahimi decision.

At trial, the government proved that the defendant was a heavy crack cocaine user who frequently posed a danger to himself and others. Section 922(g)(3), as applied to the defendant, falls squarely within “this Nation’s historical tradition of firearm regulation” and comports with the Second Amendment. New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 17 (2022). The Supreme Court’s decision today in United States v. Rahimi, No. 22-915 (U.S. June 21, 2024) clarified that Bruen only requires the government to show “the challenged regulation is consistent with the principles that underpin our regulatory tradition,” not that it is “identical” to a regulation at the founding. Slip op at 7. This significantly undermines the defendant’s reliance on United States v. Daniels, 77 F.4th 337 (5th Cir. 2023), which cites repeatedly to the now-reversed Fifth Circuit decision in Rahimi. As to the Fifth Amendment challenge, because § 922(g)(3) provides fair notice of the conduct it prohibits, it is not unconstitutionally vague. The Court should therefore deny the defendant’s motion.

But aside from that tactical opportunism, Hines doesn’t argue why Hunter himself posed a danger as a gun owner in October 2018, beyond pointing to the specific gun paraphernalia that, Abbe Lowell argued fairly convincingly, Gordon Cleveland upsold Hunter Biden to purchase.

Indeed, having argued assertively at trial that Hunter was a very high functioning crack addict, Hines relies on general policy arguments about addicts’ impairment to explain the danger of him owning a gun.

It is beyond dispute that firearm possession while operating under significant cognitive impairment in critical areas like attention, speed of processing, emotional regulation, inhibition control, and the ability to prioritize negative long-term consequences—not to mention psychological and physiological effects like panic, paranoia, tremors, or muscle twitches—presents a significant public safety risk. Nat’l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 670-71, 674 (1989). The dangerousness of the defendant’s cocaine use is vividly shown by the evidence presented at trial, in which the loss of inhibition, emotional regulation, and self-control was demonstrated. See, e.g., Ex. 19 at 170-74 (discussing an episode in which the defendant drove a 500-mile road trip on which he wrecked a rental car when he hit the curb and spun into oncoming traffic, chain-smoked crack cocaine while driving, and chased a possibly hallucinatory barn owl at high speeds “through a series of tight, bounding switchbacks”).

As the Fried court noted, “unlawful drug use . . . causes significant mental and physical impairments that make it dangerous for a person to possess firearms.” 640 F. Supp. 3d at 1262-63. People who habitually use a substance like crack cocaine that impairs the ability to think, judge, and reason “are analogous to other groups the government has historically found too dangerous to have guns.” Id. at 1263; see also Wilson v. Lynch, 835 F.3d 1083, 1094 (9th Cir. 2016) (“It is beyond dispute that illegal drug users . . . are likely as a consequence of that use to experience altered or impaired mental states that affect their judgment and that can lead to irrational or unpredictable behavior.”); United States v. Carter, 750 F.3d 462, 469-70 (4th Cir. 2014) (finding “convincing” the government’s argument “that drugs ‘impair [users’] mental function . . . and thus subject others (and themselves) to irrational and unpredictable behavior’”); Yancey, 621 F.3d at 685 (“habitual drug abusers, like the mentally ill, are more likely to have difficulty exercising self-control, making it dangerous for them to possess deadly firearms”).

Perhaps the weirdest thing Hines does, as he did at trial, is to present evidence of Hunter’s later condition to substantiate his case, citing evidence of Hunter’s crack use in November and December 2018 and February and March 2019.

By March 2019, he claimed he had “no plan beyond the moment-to-moment demands of the crack pipe” and that this period followed “four years of active addiction.” Id. at 219-20.

[snip]

The defendant also discussed purchasing drugs in text messages with several individuals, showing a pattern of consistent drug use from spring 2018 to spring 2019. See, e.g., Ex. 18 at Row 1-22 (April 2018); id. at Row 23-65 (May 2018); id. at Row 66-72 (June 2018); id. at Row 73-85 (July 2018); id. at Row 86-87 (August 2018); id. at Row 169- 80 (November 2018); id. at Row 195-206 (December 2018); id. at Row 217-49 (February 2019). [my emphasis]

Admittedly, Hines would have had virtually all of this written before Rahimi. But the SCOTUS decision stresses temporary prohibitions, not permanent ones. And particularly absent a focus on Hunter’s drug use between the time of his August rehab and the gun purchase (Hines cites but does not quote Zoe Kestan’s testimony describing Hunter’s use in September 2018), Hines’ inclusion of so much evidence that post-dates Hunter’s ownership of a gun entirely makes the constitutional question more interesting.

Can an addict really lose his Second Amendment rights for future addiction?

And in the middle of one of those passages about Hunter’s future drug use months after he owned the gun, Hines includes the false claim he won’t stop making: that Hunter’s description of “me and a crack pipe in a Super 8” pertained to the state of his addiction in fall 2018, shortly after he owned a gun, rather than four months later, after Fox News pundit Keith Ablow’s treatment had made Hunter’s addiction worse.

The defendant characterized his daily experience in November 2018 as “me and a crack pipe in a Super 8 [motel], not knowing which the fuck way was up,” explaining that “[a]ll my energy revolved around smoking drugs and making arrangements to buy drugs.” Id. at 208. According to the defendant, by March 2019, he had “no plan beyond the moment-to-moment demands of the crack pipe.” Id. at 219-20.

Now, Hines’ obtuse misrepresentation of this passage presents more problems for a defense against a vindictive prosecution appeal. After all, by repeating this false claim six times (he repeated it in his response to the sufficiency challenge, as well, because apparently Hines doesn’t know “which the fuck way [is] up”), Hines is either confessing that he grossly misread the memoir which he successfully argued before Judge Noreika distinguished Hunter from other non-violent addicts who never get charged…

…Or he simply framed Hunter Biden before the grand jury, just like a corrupt Baltimore cop would frame someone by planting a crack pipe, claiming that conduct that took place long after the charged crime instead took place just weeks later.

Derek Hines had little of the evidence he used to prove his case at trial when he indicted Hunter Biden in September of last year. He didn’t have the cocaine residue in the leather pouch, he didn’t have a warrant to search Hunter’s text messages for evidence of gun purchases, he had some, but not all, of Kestan’s testimony.

Did he falsely tell the grand jury, as he told Maryellen Noreika and insinuated to the jury, that this passage pertains to “fall 2018”?

Did he make an easily disproven false claim to the grand jury to get that indictment? (The materials below show how easy this should be for a literate prosecutor to understand.)

But it is in Kestan’s testimony where his continued recitation of this line poses problems.

To win this constitutional challenge, Hines needs Kestan’s testimony that Hunter was doing drugs between his August rehab and his October gun purchase to be credible, because otherwise there are questions about the status of his addiction when he purchased the gun.

Q. And this was September the 18th of 2018, right?

A. I believe I was in the room by myself when I took that photo, so I think the day that we woke up there and he left later was the 17th.

Q. Okay. The day or — and the night he was there with you, did you see him smoking crack at The Freehand?

A. Yes.

[snip]

Q. All right. Now, when you get there on September the 20th of 2018, you’ve already testified he was smoking crack at The Freehand. Was he smoking crack at the Malibu house, when you were there in that week starting on September the 20th?

A. Yes.

But — on top of the full excerpt and spending records I place below, showing that Hines is wrong about his claims about the Super 8 passage — Kestan’s testimony debunks Hines’ unhealthy obsession with that line about the Super 8.

Q. And when you got there, where was he staying?

A. He was staying on an island called Plum Island, next to, or part of a place called Newburyport, Massachusetts, he said he was doing a ketamine infusion treatment.

Q. What did you understand that to mean?

A. It sounded like it was an outpatient type thing, where he would go to a clinic during daytime hours and get the treatment. And he was staying in a, like a rental house on his own otherwise.

Q. And when you went to visit him, did he in fact leave for whatever these treatments were?

A. Yes.

Hunter Biden wasn’t in New Haven in November 2018, when Derek Hines claims he was smoking the crack pipe Hunter described himself smoking in a Super 8 in New Haven (though in reality, only a few of the hotels at which he stayed in New Haven were as sketchy as a Super 8, and the only obvious one was a Quality Inn, not a Super 8).

He was, per Hines’ most important witness for this as-applied challenge, in a house out on Plum Island, outside Newburyport, still getting the Ketamine treatments that preceded the scene that Hines won’t stop falsely claiming happened in 2018.

Again, Hines’ persistent false claims about New Haven matter more in a hypothetical selective prosecution challenge, because Hines’ false claim was central to his assertions that there was reason to charge Hunter when he did.

But this as-applied constitutional challenge will implicate the timeline, what came before and what came after. And Derek Hines has persistently and obtusely made false claims about the timeline so he could rely on his favorite passage from Hunter’s book, including in his response to this as-applied challenge.

Memoir excerpt

The following excerpt shows the full context of Derek Hines’ favorite passage from Hunter Biden’s memoir. The italicized text was not included in the exhibit and audio-recording presented to the jury, which clearly places this description after his treatment from Ablow.

The therapy’s results were disastrous. I was in no way ready to process the feelings it unloosed or prompted by reliving past physical and emotional traumas. So I backslid. I did exactly what I’d come to Massachusetts to stop doing. I’d stay clean for a week, break away from the center to meet a connection I found in Rhode Island, smoke up, then return. One thing I did remarkably well during that time was fool people about whether or not I was using. Between trips up there, I even bought clean urine from a dealer in New York to pass drug tests.

Of course, that made all that time and effort ineffective. I didn’t necessarily blame the treatment: I doubt much good comes from doing ketamine while you’re on crack.

The reality is, the trip to Massachusetts was merely another bullshit attempt to get well on my part. I knew that telling my family I was in rehab meant I could claim they wouldn’t be able to contact me while I was undergoing treatment. I’d made my share of insincere rehab attempts before. It’s impossible to get well, no matter what the therapy, unless you commit to it absolutely. The Alcoholics Anonymous “Big Book”—the substance abuse bible, written by group founder Bill Wilson—makes that clear: “Half measures availed us nothing.”

By this point in my life, I’d written the book on half measures.

Finally, the therapist in Newburyport said there was little point in our continuing.

“Hunter,” he told me, with all the exasperated, empathetic sincerity he could muster, “this is not working.”

I headed back toward Delaware, in no shape to face anyone or anything. To ensure that I wouldn’t have to do either, I took an exit at New Haven.

To ensure that I wouldn’t have to do either, I took an exit at New Haven. For the next three or four weeks, I lived in a series of low-budget, low-expectations motels up and down Interstate 95, between New Haven and Bridgeport. I exchanged L.A.’s $400-a-night bungalows and their endless parade of blingy degenerates for the underbelly of Connecticut’s $59-a-night motel rooms and the dealers, hookers, and hard-core addicts—like me—who favored them. I no longer had one foot in polite society and one foot out. I avoided polite society altogether. I hardly went anywhere now, except to buy. It was me and a crack pipe in a Super 8, not knowing which the fuck way was up. All my energy revolved around smoking drugs and making arrangements to buy drugs—feeding the beast. To facilitate it, I resurrected the same sleep schedule I’d kept in L.A.: never. There was hardly any mistaking me now for a so-called respectable citizen. Crack is a great leveler.

New Haven area spending, February to March 2019

The following collects a non-exhaustive summary of money Hunter Biden spent in and around New Haven between February 11 and March 9, 2019. There is no other similar presence in New Haven that is easily identifiable.

This timeline happens to coincide with some of Hines’ favorite proof of drug purchases, as well.

February 11, 2019: Courtyard, New Haven

February 13, 2019: Courtyard, New Haven

February 13, 2019: Purchase at Reruns Bar and Grill, West Haven

February 13, 2019: Non-WF ATM withdrawal Broadway, New Haven

February 14, 2019: Purchase at Zachary’s Package Store, New Haven

February 14, 2019: Purchase at Citgo, New Haven

February 14, 2019: Non-WF ATM withdrawal Broadway, New Haven

February 14, 2019: New Haven Parking

February 15, 20199: ExxonMobil, West Haven

February 15, 2019: Non-WF ATM withdrawal Whitney Ave, Hamden

February 15, 2019: Non-WF ATM withdrawal Elm Street, West Haven (4X)

February 15, 2019: Non-WF ATM withdrawal Sawmill, West Haven (2X)

February 15, 2019: Purchase at New Haven Pizza, New Haven

February 15, 2019: Non-WF ATM withdrawal Highland, West Haven (4X)

February 15, 2019: Purchase at Sawmill Package Store, West Haven

February 15, 2019: ExxonMobil payment, West Haven

February 16, 2019: Carriage House, New Haven

February 16, 2019: Purchase at Around the Clock, New Haven

February 16, 2019: Purchase at Walgreens, New Haven

February 17, 2019: Carriage House, New Haven

February 17, 2019: Purchase at CVS, Hamden

February 17, 2019: Purchase at Tommys Tanning, Hamden

February 17, 2019: Non-WF ATM withdrawal Whitney Ave, Hamden

February 18, 2019: Carriage House, New Haven

February 18, 2019: Uber used on new device in Hamden

February 18, 2019: Non-WF ATM withdrawal Hamden Plaza, Hamden

February 18, 2019: Non-WF ATM withdrawal Dixwell Ave, Hamden

February 18, 2019: Non-WF ATM withdrawal Whitney Ave, Hamden

February 18, 2019: Purchase at McDonalds, Hamden

February 19, 2019: Non-WF ATM withdrawal Whitney Ave, Hamden

February 19, 2019: Uber ride from West Haven to Hamden

February 19, 2019: Booking.com The Blake Hotel, New Haven

February 19, 2019: Purchase at Drizly, New Haven

February 20, 2019: Uber ride from Milford to New Haven

February 21, 2019: Uber ride from New Haven to Milford

February 21, 2019: ATM withdrawal Hemingway Ave, New Haven

February 21, 2019: Purchase at Zachary’s Package Store, New Haven

February 21, 2019: Purchase at Fatface Corporation, New Haven

February 21, 2019: Purchase at Patagonia New Haven

February 21, 2019: Parking paid in New Haven

February 21, 2019: Parking paid in New Haven

February 23, 2019: Booking.com Marriott Worcester

February 24, 2019: Purchase at Whiskey on Water, Worcester

February 26, 2019: Uber ride from New Haven to New Haven

February 26, 2019: Purchase at Energy, Berlin

February 26, 2019: Purchase at Walgreens, New Haven

February 26, 2019: Purchase at Pizza Plus, New Haven

February 26, 2019: Non-WF ATM withdrawal College Street, New Haven

February 27, 2019: Non-WF ATM withdrawal College Street, New Haven

February 27, 2019: Non-WF ATM withdrawal George Street, New Haven

February 27, 2019: Uber ride from New Haven to New Haven

February 28, 2019: New sign-in to Twitter on Safari in New Haven

February 28, 2019: Non-WF ATM withdrawal Chapel Street, New Haven (2X)

February 28, 2019: Non-WF ATM withdrawal Church Street, New Haven

February 28, 2019: Non-WF ATM withdrawal George Street, New Haven

February 28, 2019: Non-WF ATM withdrawal Broadway, New Haven

February 28, 2019: Purchase at Meat&Co, New Haven

February 28, 2019: Purchase at Rite Aid, New Haven

February 28, 2019: Pick-up iPhone XR at Apple New Haven

February 28, 2019: Uber ride from Naugatuck to New Haven

February 28, 2019: Uber ride from New Haven to Naugatuck

March 3, 2019: ATM withdrawal Campbell Ave, New Haven

March 4, 2019: ATM withdrawal Foxon Blvd, New Haven

March 4, 2019: ATM withdrawal Hemingway Ave, New Haven

March 6, 2019: Purchase at Sunoco, Naugatuck

March 6, 2019: Purchase at Family Dollar, Naugatuck

March 6, 2019: ATM withdrawal Whalley Ave, New Haven

March 6, 2019: New sign-in to Twitter on Safari in New Haven

March 6, 2019: ATM withdrawal Church Street, New Haven (X4)

March 6, 2019: Purchase at Temple Wine and Liquor Store, New Haven

March 6, 2019: Uber ride from New Haven to New Haven

March 6, 2019: Booking.Com Omni Hotel New Haven

March 7, 2019: Uber ride from West Haven to New Haven

March 8, 2019: Uber ride from point to point in New Haven

March 8, 2019: ATM withdrawal Hemingway, East Haven

March 9, 2019: Quality Inn, New Haven (2X)

Fridays with Nicole Sandler

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Garrett Ziegler Done in by His Chateau Marmont Field Trip

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Judge Hernán Vera has denied Garrett Ziegler’s motion to dismiss Hunter Biden’s lawsuit against him.

I had thought that Ziegler’s defense against the hacking claims, which argued that because Hunter Biden never owned the hard drive on which Ziegler received all Hunter’s data (including the iPhone protected by a password), might pose some interesting legal arguments.

I’m sure we’ll see the argument return, but for this stage of proceedings, Judge Vera agreed with Hunter’s argument that the relevant hacking laws focus on data, not devices.

Defendants assert that “[n]either the CFAA nor the CCDAFA authorizes a party whose data has been copied to assert a civil action over any computer, device or system not in their possession.” Motion at 5. But Defendants fail to point to language in these statutes that require possession of the physical device. Neither the CFAA nor the CCDAFA contain any requirement that Plaintiff must “own,” “possess,” or “control” the physical device or computer that Defendants accessed. The statute concerns the ownership of the data accessed. Both statutes allow Plaintiff to assert claims based on the facts asserted. See 18 U.S.C. § 1030(g) (extending civil remedy to “any person” who suffers damage or loss); Cal. Pen. Code § 502(e)(1) (extending civil remedy to owners of “data” who suffer damage or loss). In fact, Defendants’ ownership-and-control argument has been rejected by the Ninth Circuit. See Theofel v. Farey-Jones, 359 F.3d 1066, 1078 (9th Cir. 2004) (reversing “district court [that] erred by reading ownership or control requirement into the [CFAA] . . . . Individuals other than the computer’s owner may be proximately harmed by unauthorized access, particularly if they have rights to data stored on it.”).

The next time some tabloid journalist makes big news about Hunter’s spouse calling Ziegler a Nazi, she can state with confidence that this is a lawsuit about hacking, not about merely disseminating data.

The means by which Vera dismissed Ziegler’s claim that there was no personal jurisdiction over his activities in California are a bit more fun.

Among the evidence that Ziegler’s activity included a focus on California cited by Vera was the picture Ziegler posted to Instragram showing himself posing outside the Chateau Marmont in LA, holding a copy of his report.

Vera also noted that Ziegler’s sales of the report rely on Stripe and its CA-based servers.

Defendant Ziegler notes that the report Defendants prepared using Plaintiff’s data is available at the website www.bidenreport.com. Ziegler Decl. ¶ 8 & n.1. On this website, a “Purchase” button is prominently displayed, allowing users to spend $50.00 for a hardcopy of the Biden report. Declaration of Gregory A. Ellis (“Ellis Decl.”) ¶ 6, Ex. A [Dkt. No. 30-2]. Clicking the purchase button then links to a purchase page operated by Stripe.com, a California-based entity whose purchase terms are governed by California law.7

7 See www.stripe.com/legal/consumer, Section 12.

And Vera noted that Ziegler had sent copies of the report to CA residents like Elvis Chan (the FBI Agent at the center of right wing conspiracy theories about Twitter briefings) and Hunter’s criminal defense attorney, Angela Machala.

For example, he sent copies to multiple California residents to verify Plaintiff’s information. Ziegler said in interviews that his team talked with each person named in the report. Ellis Decl. Exs. C at 12 (“I took the time to call each and every person that is in this report”) [Dkt. No. 30-5]; D at 8 (“we’ve sent the dossier to all 4,000 contacts on Hunter’s laptop) [Dkt. No. 30-6]. He even includes a table of alleged Plaintiff family crimes with California area codes, many listing “where (venue)” as C.D. Cal. Ellis Decl. Ex. E at 233–35, 400–01. Other California residents include an FBI agent in the San Francisco field office, Ellis Decl. Ex. E at 22. And Ziegler even sent the Report to the personal residence of one of Plaintiff’s California-based attorneys. Ellis Decl. ¶ 12.

Vera’s ruling opens the way for discovery of the specific means and personnel involved in the exploitation of the hard drive, including the chain of custody via which Ziegler obtained it. Among the issues ripe for discovery cited in Hunter’s response include how Ziegler obtained the data, who funded his efforts, and who helped Ziegler exploit the data.

Defendants will have to explain how many copies of Plaintiff’s data they received and from whom, as well as the precise data they came to possess, during discovery in this case.

[snip]

Ziegler’s assertions about Defendants’ website views and support from California also demonstrate that the Court should exercise its discretion to allow jurisdictional discovery, should it still have questions about jurisdiction even after reviewing Plaintiff’s evidence. See, e.g., Orchid Biosciences, Inc. v. St. Louis Univ., 198 F.R.D. 670, 672-73 (S.D. Cal. 2001) (noting that courts have broad discretion in allowing jurisdictional discovery, citing multiple authorities). Here, discovery would be appropriate to address the following issues, at a minimum: the total number of Defendants’ financial supporters based in California; the percentage of their total financial supporters based in California; the total amount of money donated from California; the percentage of Defendants’ monetary donations emanating from California; the total number of unique website viewers from California; the percentage of unique website viewers from California; the number and percentages of website purchases of hardcopies of the Report emanating from California locations; and the number of California residents Ziegler sent hardcopies of the Report to in his “carpet-bombing” campaign, discussed infra.

[snip]

4 It is unclear whether the “team” of individuals who assisted Defendants with their data-related activities includes any California residents. In his declaration, Ziegler attests he has “hired no employees or independent contracts [sic] to conduct business in California, nor do any of Marco Polo’s board members reside in California.” (Ziegler Decl. ¶ 13.) But this careful wording leaves open many potential California connections, including the possibility that some aspects of Defendants’ unlawful data-related activities occurred in California and/or were perpetrated by California residents who were assisting Defendants in a capacity other than as “employees or independent contractors.” The location of Defendants’ “team” members is another appropriate topic for jurisdictional discovery.

The frothy right made a big deal about the fact that Hunter and Robert Costello put the lawsuit against Costello and Rudy Giuliani on hold pending Rudy’s bankruptcy. But discovery on this lawsuit will get to some of the very same issues.