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Garrett Ziegler Done in by His Chateau Marmont Field Trip
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.
Hunter Biden’s Prosecutors Complained about the Laptop, Once, Too
Just over a month ago, Judge Maryellen Noreika denied Hunter Biden’s request to compel prosecutors to provide better guidelines about where it had obtained evidence they would use against him. Because Derek Hines had identified the individual messages he used in a filing — including the Keith Ablow picture of sawdust Hines claimed was cocaine — she deemed the request moot.
Defendant closes his motion with a request that the government be ordered to “generally point defense counsel” to where, on a forensic image of Defendant’s “Apple MacBook Pro,” certain text and photographs can be located. (D.I. 83 at 18). That forensic image was produced to Defendant in October 2023 without an index, without any Bates stamps and without any indication of what will be used at trial. (Id. at 17). Although the government produced the laptop in the specific format requested by Defendant (D.I. 86 at 19), he complains that he has been unable to locate on the image certain text and photographs relied upon by the government (D.I. 83 at 17-18). In its opposition, the government provides an exhibit with images and annotations that appears to identify where the information resides on the laptop. (See D.I. 86 at Ex. 1). As best the Court can tell, this response satisfied Defendant, and there are no further outstanding requests with respect to the laptop. (See D.I. 89 at 19-20 (recognizing that the government has no index and expressing appreciation for the government’s disclosure of location of information)). Therefore, Defendant’s request as applied to the Apple MacBook Pro appears moot.
Noreika’s refusal to require a searchable format came up at least twice at trial (probably three times). I’ve already described how prosecutors sprung the 7-Eleven texts on Hunter the morning of closing arguments. Hunter’s team surely looked for communications between Hunter and Naomi Biden before they put the daughter on the stand, but they seem to have been surprised by some texts changed that week (note, those texts were only used to refresh her memory, so did not come in as exhibits).
But even prosecutors complained that they couldn’t find things that had been on the laptop.
Before dropping four pages of new texts on Hunter Biden the last morning of trial, days earlier, Leo Wise complained that Hunter’s team had only identified the location of eight pages of texts they wanted to use to cross-examine Hallie the night before Hallie testified.
MR. WISE: The first issue is globally, we got this at 11:07 last night that actually provided the sources for these messages. We have been asking for it since Monday when they sent it to us. We of course provided our summary chart months ago. The whole point of the rule, 1006 to allow each side to check the accuracy of the statements that are in the summary chart. So we think the whole thing should be kept out because we haven’t had the time and they haven’t followed the rules to give us the time. And it’s eight-pages long.
Lowell responded that they had given the texts earlier; they had just provided the location the night before.
MR. LOWELL: Yes, of course. So as to the first one, Mr. Wise would indicate that the first time he saw these texts was whenever he just said. Actually, over the last few days we have back and forth, they keep asking us for source material and we keep trying to provide it.
THE COURT: What are these sources that they all have exactly the same number?
MR. LOWELL: I would like my colleague to address the source if I could have that happen.
MR. WISE: I didn’t say we saw the text for the first time last night, I said we saw the source.
Judge Noreika suggested that one thing prosecutors were trying to do was challenge the authenticity of the texts. Lowell reminded that he got Agent Jensen to vouch for authenticity on the stand.
THE COURT: I understand, you were trying to check the accuracy and authenticity.
MR. LOWELL: Again, one of the things I asked Agent Jensen was whether or not that material, the Cloud material, and the laptop was in the condition that they got it and whether they provided it to us in discovery and whether it was the same material and she said it was. That is the source, they have it and they sent it to us, we sent it back to them, but I’ll have Mr. Kolansky address the source for it.
MR. WISE: I don’t think they sent it back to us. But again, if you look at our chart, we literally have page 1001, I’m looking at a message 86, page 1412, so that they could go back exactly to where this message comes from and it was provided months ago.
That’s when Hunter attorney David Kolonsky revealed he was working from the hard drive of the laptop prosecutors provided and Hunter’s team used a different extraction tool to work from there.
MR. KOLANSKY: Your Honor, these messages that start on October the 11th, they’re extracted from the hard drive that we received in discovery from the government. It was a single hard drive with essentially, if you think about it —
THE COURT: So was there a way for you to say it’s on page whatever of the hard drive?
MR. KOLANSKY: There is not, Your Honor.
THE COURT: How did they do it?
MR. KOLANSKY: I don’t know how they do it, I don’t know what software they used.
THE COURT: How did you give them a specific place to go and he’s saying you can’t.
MR. WISE: We gave it to them both ways, they asked for the raw data and then we also gave them these extraction reports that reflect all of the messages that we are using with page numbers and all of the messages they’re using, they’re just somewhere in these 18,000 pages and they won’t tell us where.
THE COURT: You’re assuming they’re somewhere in these 18,000 pages, you don’t know?
MR. HINES: They keep saying they’re from the same data, so that means they should be on the extraction reports and the extraction reports are pages that are–
THE COURT: Can you get them that information?
MR. KOLANSKY: We can get them the information based on an extraction report that we created using an extraction software we have. It’s not going to match —
THE COURT: Did they give you an extraction —
MR. WISE: We gave them an extraction report, they did not give us whatever he’s referring to that has page numbers that we can look at.
THE COURT: So you gave them an extraction report, the same extraction report you used to come up with page numbers?
MR. WISE: Exactly.
THE COURT: Can you use that extraction report and give them page numbers?
When Judge Noreika asked why Kolansky didn’t just use the extraction report prosecutors provided, he said he couldn’t find all of them.
MR. KOLANSKY: When I searched these messages last night, Your Honor, for each of the 42 rows, I did not find these messages in the extraction report that they’re referring to.
MR. WISE: So they have discovery, an extraction report that they’re relying on that they haven’t give us which is the underlying material that supports under 1006 the summary report and they should have given it to us.
MR. KOLANSKY: Your Honor, we’re happy to provide the extraction report that we generated.
THE COURT: Why are you doing that today when you expect to use the exhibit today?
MR. KOLANSKY: It’s an extraction report that we used in order to thread the messages so that they’re readable.
THE COURT: Yes, but — what I’m confused about is you’re not giving them the information in the same way that they gave it to you. You’re saying — he’s saying look, tell us where it is, we gave you an extraction report and you’re telling me but it’s not in, it’s something new that wasn’t in the government’s extraction report and you can’t tell us where it is?
MR. KOLANSKY: Let me try to rephrase it, maybe I’m mischaracterizing it. When we —
THE COURT: Was it in the — so the government gave you an extraction report, you’re telling me these messages you want to use were not in there.
MR. KOLANSKY: Correct. They were in something else.
MR. LOWELL: They were in a separate sub-data, the extraction reports were from the iCloud, these messages were derived not from the source file, but from Macintosh HD, Macintosh hard drive, so there is two worlds of discovery, iCloud, and those were the extraction reports, and then material from the hard drive, which we extracted ourselves based on the forensic images they provided.
THE COURT: Did you give them an extraction from the hard drive?
MR. WISE: Yes, from the laptop. There is an extraction– that’s why if you remember when Agent Jensen was testifying, the format changed —
THE COURT: So these are messages that you’re using from the laptop, not from the — not from the iCloud.
MR. KOLANSKY: They’re from the hard drive that we received from the government.
THE COURT: The hard drive image is from the laptop. You guys are talking, I got laptops and hard drives, and I don’t even know what else I got, iClouds, oh my.
MR. KOLANSKY: Yes, that’s right.
THE COURT: So the hard drive, though, is the hard drive that correlates with the laptop.
MR. KOLANSKY: Yes, Your Honor.
THE COURT: So these are messages you want to rely on from the laptop that are not in the iCloud?
MR. KOLANSKY: That’s correct, Your Honor.
THE COURT: Okay. And you’re saying, Mr. Wise, that you gave them extraction files from the hard drive/laptop.
MR. WISE: Exactly.
THE COURT: And why didn’t you give them from that extraction file, the page numbers?
MR. KOLANSKY: I have not seen that extraction report, Your Honor.
MR. WISE: We provided it in discovery. It was — that’s how we made the chart, I mean, which they’ve had for months. So if they looked at that chart and said wait a minute this says laptop, we don’t have an extraction report from the laptop, where are you getting this from, we would have expected to hear that months ago. There is clearly an extraction report, that’s what the 1006 reflects and we reattached it when we provided our expert discovery.
MR. LOWELL: One point on that, by the way, if we’re talking about authenticity, which I think is half the issue, we talked to the government and have the stipulation about it being authentic.
Finally, Wise and Hines started claiming that the reason they can’t find these texts are because maybe they were filtered as privileged.
MR. WISE: There is sort of two things with that. We didn’t get everything that’s on that laptop. It went through a filter review. So we may or may not have. They have the whole set. So first thing —
THE COURT: Filter review from whom?
MR. WISE: A separate team that we have no access, we’re walled off for, it’s in the search warrant, that is the protocol that would be followed. The first thing is whatever they would want to show her, they should give us, we should see it so we know, and we’re not going to be able to sitting here sort of find it on the fly. If the question is authenticity, sure a witness can testify that, you know, this is a text I sent or an e-mail I sent and that gets them through the authenticity gate, but it doesn’t necessarily get them through the admissibility gate and the admissibility gate is often things like is it a business record, that’s how it comes in, is it some other exception —
[snip]
MR. LOWELL: Yes. So we will try to get that done quickly and figure that out. Again, not that I feel like I need to apologize, but we have been going back and forth. The data is incredibly dense and we have gotten it from the government in various ways. And now I’m hearing that they’re saying in their extraction report or what they did, there may be things missing, well we have them from them, so I don’t know how things we put here could be missing because we didn’t invent this, we got it from them.
THE COURT: So anything — maybe I should address this to your colleague. So anything that you have gotten or put on this chart is something you got from the government, not from any other source?
MR. KOLANSKY: That’s correct, Your Honor, and I proffer that and it comes directly from the government and that is why I endeavored to be as precise as possible to the original source file path they can stick it on the hard drive and get exactly to the folder where that message is derived from on the hard drive we received.
MR. LOWELL: Like last night I think, or yesterday afternoon, whenever we were able to go back, we provided them with the media that they can go and do exactly what Mr. Kolansky just said and check it. Now if they chose not to, I’m sorry but we gave it to them because that’s the best you can do with the data they gave us.
THE COURT: All right.
MR. WISE: No, no, we didn’t get any media, I got, 11:07, I saw something on my phone that has this path name that I don’t know what it is.
MR. LOWELL: I’m sorry, we gave them the file path one by one of something they gave us.
MR. WISE: Yeah.
THE COURT: The file path one by one, but the file path is identical.
MR. HINES: It’s filtered, we can’t see that but we can’t — and they know that from the search warrant, it’s in the search warrant.
THE COURT: So you’re limited in what you can do because you’re trying to protect rights using only the information allowed from the search warrant.
MR. WISE: Exactly.
MR. LOWELL: What I’m learning for the first time, understand this, they have provided us in discovery things that they’re saying that the investigative team does not have. So I didn’t realize that, I thought it was a one to one match, you would have assumed that otherwise I don’t know why they would have sent it to me, it’s not attorney/client materials we’re talking about, it’s conversations between Mr. and Ms. Biden, so I don’t understand that.
MR. WISE: It’s Rule 16, it’s his statement, we have to turn it over, if it’s privileged, we don’t get to see it if it goes through a filter, this is not anything new, the search warrant says it went through a filter.
Even Judge Noreika scoffed that the government would have filtered communications between Hunter and Hallie as privileged, which led Wise to channel Donald Rumsfeld invoking known unknowns.
THE COURT: He’s saying this is conversation between Mr. Biden and Ms. Biden, there is no arguable privilege here.
MR. WISE: Again, we don’t know what we don’t know, when they say we got it, we don’t have it
Again, Hunter’s team blew the deadline for exhibits, so part of this was their fault (though these were exhibits for cross-examination).
But ultimately, Hines and Wise’s silly claims that they couldn’t find individual comms either stems from the failure to do an index of the laptop in the first place.
Even prosecutors had a problem with the complexity of the laptop, and in that moment, tried to claim (in part) that they could exclude material from the laptop they had testified was authentic because they couldn’t find it.
The Threats that Hunter Biden’s Prosecutors Pretended Didn’t Exist Continue Unabated
Twice in the lead-up to Hunter Biden’s first trial, Leo Wise and Derek Hines pretended that threats elicited by the political firestorm surrounding the case didn’t exist.
When Abbe Lowell raised the threats David Weiss faced and cited a story describing Weiss’ testimony about the safety of his family, Derek Hines continued to insist that there was no way Trump — who attacked Weiss personally after the plea deal was docketed — could have influenced the case (before Judge Noreika, prosecutors had claimed to be incompetent to find the offending Trump posts on Truth Social).
If the statements by politicians prior to the hearing truly influenced the prosecution in the way the defendant claims they did, why did the government sign the agreements and present them at the hearing? Second, to state an obvious fact that the defendant continues to ignore, former President Trump is not the President of the United States. The defendant fails to explain how President Biden or the Attorney General, to whom the Special Counsel reports, or the Special Counsel himself, or his team of prosecutors, are acting at the direction of former President Trump or Congressional Republicans, or how this current Executive Branch approved allegedly discriminatory charges against the President’s son at the direction of former President Trump and Congressional Republicans. The defendant’s fictious [sic] narrative cannot overcome these two inescapable facts.
Then, in a March hearing on that motion as well as one arguing that the publicity campaign from the disgruntled IRS agents had unlawfully influenced the prosecution, Leo Wise claimed there’s no proof that the IRS agent campaign started the dominoes that led Weiss to renege on the plea deal.
MR. WISE: So I think the Defense’s problem is the same problem you identified in the last motion, which is they offer no proof. None. None whatsoever that there’s causation.
I wrote down what Mr. Lowell said. He said the agents “did the causation.” What does that mean?
Where’s the proof that these two guys going on TV had anything to do with what we did?
Well, they said, “Oh, they started the dominoes.”
What dominoes? Where is the proof of any of that?
Other than insulting us, where is the proof that anything these two agents — who I couldn’t have picked out of a lineup — had anything to do with our decision-making?
Wise said that as David Weiss looked on. While neither Jim Jordan nor DOJ have released the transcript proving it, according to Special Agent in Charge Thomas Sobocinski, both Sobocinski and Weiss acknowledged, after Gary Shapley first started his media tour, that the publicity campaign, “would have had it had an impact on our case,” and that impact had been doxing and pressure on members of the investigative team.
Q After it became public that Gary Shapley was going to come to Congress and he gave, I think, an interview on CBS in the at the end of May before his congressional testimony, who did you discuss that with?
A My team within Baltimore, probably folks within the Criminal Investigative Division. Definitely David Weiss.
Q And what was the nature of your conversation with David Weiss?
A I need to go off the record for a minute.
Mr. [Steve] Castor. Okay.
[Discussion held off the record.]
Mr. Sobocinski. Yeah. In general, it was concerns about how this was going to affect the ongoing case and were there issues we needed to take into at least from the FBI side to move forward.
BY MR. CASTOR:
Q After Shapley’s testimony became public in June, did you have any conversations with David Weiss about that?
A We acknowledged it, but it wasn’t I mean, we didn’t sit there with the transcript going back and forth. We both acknowledged that it was there and that it would have had it had an impact on our case.
Q Okay. Did any of your conversations with David Weiss, you know, have anything to do with like, can you believe what Shapley’s saying, this is totally 100 percent untrue?
A I don’t remember that level of it.
Q If it was
A I was more concerned about how this is affecting my employees. I now have FBI employees that names are out there. I have FBI employees and former FBI retired agents who’ve served for 20plus years whose parents are getting phone calls, whose photos with their girlfriends, who their children who are being followed. That is not something that we were prepared for, and I was concerned about having that continue or expand to other one of my employees. [my emphasis]
The transcripts in which David Weiss, Lesley Wolf, and Martin Estrada described the threats they and their families faced as a result of the pressure campaign from the IRS agents, House Republicans, and Trump have not been released. The outcome of any investigations into those threats likewise remains secret. Similarly, the efforts US Marshals made in response, especially, to the threats against Wolf and Estrada remains secret, though even Ken Dilanian described a special unit to investigate threats against FBI agents on these high profile investigations.
While Abbe Lowell did not focus on the threats elicited by the pressure campaign as much as he might have, to the extent he did, prosecutors simply pretended those threats didn’t exist.
And then, hours and days after the Hunter Biden verdict, the vicious conspiratorial threats went public with the arrest affidavit for Timothy Muller, a Trump supporter in Texas who, six hours after the verdict, called the FBI agent who picked up the laptop from John Paul Mac Isaac (and who may not have been involved in the case since 2021) and threatened him and his family.
Hey [j], you little cock-sucking pussy! You can run, but you can’t fucking hide. You covered up child pornography. You covered up [Hunter Biden] raping his own fucking neice, you fucking piece of fucking degenerate shit! So here’s how it’s gonna go: [Trump’s] gonna win the re-election. and then we’re gonna fucking go through the FBI and just start throwing you cock-suckers in jail. OR, you can steal another election, and then the guns will come out, and we’ll hunt you cock-suckers down and slaughter you like the traitorous dogs you are in your own fucking homes. In your won fucking beds. The last thing you’ll ever hear are the horrified shrieks of your widow and orphans. And then you know what we’re going to do? Then we’re going to string those fucking cock-suckers up. We’re going to slaughter your whole fucking family, you fucking pedophile! It’s like THAT now. So choose. Jail? Or getting strung up and lynched like the fucking traitor you are. That’s what happens when you cover up for fucking pedophiles, you piece of fucking shit!
Trump supporters are calling investigators and threatening to lynch them because they’re not prosecuting conspiracy theories ginned up by fellow Trump supporters.
When staffers asked David Weiss last November about these threats, he offered up the word, “intimidation” (then disclaimed understanding the motive for such threats).
Q Has this outsized attention led to increased attention on your office specifically?
A It’s led to increased attention for everyone who has touched the case. I think that’s correct.
Q Has the outsized attention given to this case resulted in threats and harassment against members of your office?
A Yes. Members of my office, agents assigned to the case, both from the IRS and from the FBI, doxing family members of members of my office. So, yeah, it’s part and parcel of this case.
Q Do you have concerns for the safety of individuals working in your office?
A Sure. I have safety concerns for everybody who has worked on the case, and we want to make sure that folks — yeah, folks are encouraged to do what they need to do with respect to the pursuit of justice generally and they not be intimidated in any way from performing their responsibilities.
[snip]
Q Do you have concerns for your safety or that of your family because of these threats?
A You know, I’m not — for myself, I’m not particularly concerned. Certainly I am concerned, as any parent or spouse would be for — yeah, for family, yep.
And at least as expressed by Muller, these threats are intimately tied (as exploitation of Rudy Giuliani’s copy of the laptop and Trump’s threats to replace DOJ officials with Jeffrey Clark were in the first place) to Trump’s false claims about the 2020 election, to Trump’s bid to become a dictator from day one.
And even as prosecutors serve up one after another humiliating trial during campaign season, they’re pretending the campaign against Hunter Biden isn’t all part of Trump’s bid for unaccountable power.
Fridays with Nicole Sandler (and LOLGOP and Spocko)
Nicole Sandler was quite sick today so LOLGOP and Spocko helped fill in.
Listen on Spotify (transcripts available)
Listen on Apple (transcripts available)
The Pee Tape: The Media’s Obsession with Jill Biden May Undermine the Jury
Let say at the outset, I absolutely support the decision of the jury to convict Hunter Biden, based on the evidence submitted to them.
This description, from Juror 10, describes that Abbe Lowell’s attempt to explain away the 7-Eleven texts sprung on the defense the morning of closing arguments convinced the jury that Hunter had been trying to buy crack shortly before he denied being an addict on the gun form.
The 68-year-old juror from Sussex County, Delaware described the case to Fox News but said he didn’t buy the defense’s narrative that Hunter may have gone to a 7-Eleven to buy coffee — and said he thought he was probably buying crack-cocaine.
“Nobody is above the law, doesn’t matter who you are,” the juror said.
Prosecutors had suggested that Biden was trying to reach out and find drug dealers when he was arranging to meet someone at a Wilmington convenience store at 5 a.m. 7-Eleven was referenced in Biden’s Oct. 15-16, 2018, text messages. Biden also wrote about the convenience store in his memoir, “Beautiful Things,” explaining it was the type of place he would go to buy drugs.
That would suggest any question about the verdict would focus more on the way the prosecution submitted these texts, without identifying them as exhibits first, as a rebuttal case.
As zscoreUSA and I were discussing when I described the background of the texts, by submitting them in this way, Abbe Lowell had no opportunity to conduct a technical review of how those SMS texts, probably sent from a phone that Hunter lost the day he sent them, came to be found on a laptop that didn’t first associate to Hunter Biden’s iCloud account for another ten days. (He may later have found the phone, but this particular instance is a case that prosecutors would need to explain.)
So admitting them in this way did two things: Admitted case-in-chief evidence as rebuttal evidence, even though it had no plausible tie to rebutting Naomi Biden’s testimony, the pretext prosecutors used for doing so, and in so doing, depriving Lowell of making a technical challenge to their admission.
As I said before those texts came in, the case that Hunter used drugs during the period he owned the gun was strong. That made the decision on Count Three, possession, fairly clear cut. Short of nullification, the biggest question was whether jurors would find the sketchiness surrounding the form raised enough questions about it to give pause on the two form-related charges. Apparently it did: according to one report the last thing the jury decided was whether the form could be deemed material in a case where the gun shop admitted they sold the gun even though the paperwork was improper.
But once those 7-Eleven texts came in, it made any attempt to explain mindset at the gun shop far less convincing. As Lowell said, the texts were “case changing.”
So any question about the verdict will focus not on the jury, but on five decisions Noreika made:
- To permit the prosecution to rely on laptop evidence without indexing and Bates stamping it first
- To admit laptop evidence via summary, evading any technical validation
- To prohibit virtually all discussion of the gun shop’s own alleged misconduct with respect to the form
- To allow prosecutors to admit these texts as rebuttal, when they should have come in — as identified exhibits — in their case in chief
- To keep “knowingly” off the verdict form
Again, with regards to the substance of the evidence, all of the many juror interviews demonstrate that the verdict was proper. I’m grateful for their service and happy that they’re not terrified of being doxxed, as all the Trump jurors (wisely) appear to be.
That said, the media’s obsession on whether Jill Biden’s presence in the courtroom played a factor — a question they seemed to ask every time a juror gave an interview — could undermine the jury in another way, because it introduces questions of juror credibility and raises further questions about their discussions before deliberating.
That’s because this tweet from Glenn Thrush suggests that jurors and the media were, at a minimum, aware of, if not interacting with, each other as they all stayed at the Doubletree Hotel next to the courthouse.
Juror 10, who lives an hour away from the courthouse, is among those who might have stayed at the hotel.
The jurors all promised they would keep an open mind. But there wasn’t a single journalist at the trial who exhibited an open mind — and almost none of them exhibited an understanding of the elements of offense for each of the three charges. Almost none of them understood that the four years of evidence of addiction was not dispositive about Hunter’s mindset on October 12, 2018.
The jurors were much smarter about the case than the tabloid journalists covering it. So even if jurors just heard reporters discussing the case at breakfast or the hotel bar, it might taint their understanding of the case (though Judge Noreika asked jurors Tuesday morning and they said they had not “[heard] anything” outside of the courtroom).
All the more so given that jurors went from a 6-6 split on the verdict on Monday to coming to unanimity after a few hours on Tuesday.
Because of the import of the 7-Eleven texts, any such taint likely wouldn’t matter.
But there is something that jurors have said that might raise questions.
Because the press asked and asked and asked about Jill Biden’s presence, there are many descriptions of how the jury viewed her presence, such as this claim from the ubiquitous Juror 10.
Some jurors confessed that they didn’t initially recognize the first lady, who was a constant figure sitting behind Hunter Biden in the courtroom gallery.
“People were saying, ‘I didn’t even know what President Biden’s wife looked like,’” juror No. 10 said, adding that he felt badly that Hunter Biden’s daughter, Naomi Biden, was called to testify.
Juror 10 balked at that same question here.
CNN, however, said that all the jurors it spoke with “acknowledged the weight of having her in the courtroom,” (with yet another quote from Juror 10).
The reason this matters is that one juror and two alternates ran into Jill Biden and Melissa Cohen Biden last Wednesday when they decided to use the public bathroom rather than the dedicated jurors’ bathrooms.
THE COURT: So during the break, three jurors decided that they didn’t want to wait in line in the jury room because there are 16 of them and one bathroom or two, and so they went out in the hall and they went to the bathroom. It was juror number nine, and it was two of the alternates, I believe it was the remaining — the first two remaining alternates, not the older woman on the —
MR. KOLANSKY: Younger woman.
THE COURT: Yes, the two younger women. And so they went to the bathroom and the Marshal saw them in there and came back. Mr. Biden’s wife was in there at the time. And she was in the stall, and she was coming out of the stall when they were — when they were — I guess washing their hands or something.
So I instructed my deputy that he needs to be much sterner that they — with all the jury, that they cannot leave unaccompanied. I then called in each of the jurors one at a time into my chambers to reinforce that, but also to ask them what happened.
They each gave very similar stories. They said you know, didn’t want to wait in line, they opened the door from my chambers, there is a hallway back here, my chambers is on the other side, so they walked down this hallway, got to the door, and they saw security. I assume it was Secret Service, because I think Mrs. Biden stands out there. They said they waited and someone gave them a thumbs up and they walked to the bathroom, went to the bathroom, were coming out and as they were coming out, they saw Mrs. Biden, the younger Mrs. Biden, coming out of the stall. That there were no — there was no discussion, no interaction, but they saw her, and then one of the jurors said when it was — one of the alternates, she said when she was walking back, she looked sideways, and saw the first lady, that one didn’t bother me because you can see the first lady sitting in the courtroom. That’s what happened, if you guys want to do anything, if you want to ask them any questions you can, but I just want to put on the record that happened.
MR. LOWELL: Appreciate you telling us that, there was no verbal interaction?
THE COURT: There was no verbal interaction, were you guys discussing anything you’re not supposed to be discussing about the case, were you discussing anything in the bathroom?
MR. LOWELL: There is nothing I need to say.
THE COURT: No, she didn’t do anything wrong.
MR. LOWELL: She just went to the bathroom?
MR. HINES: Today?
MR. LOWELL: Right. I understand.
Getting questioned — without warning to the lawyers in advance — about this interchange changed the focus on Jill Biden.
We know, from the sidebar on Hallie Biden’s interactions with her spouse, that jurors were discussing interactions with family members when they shouldn’t have been. Indeed, one of the alternate jurors was the one who first raised the exchanges Hallie Biden was having from the witness stand.
And Juror 10’s chummy interviews with the press raises questions about discussion of Jill Biden’s presence, possibly in response to this exchange.
Leo Wise’s Performed Ignorance
I want to look at a tactic that Leo Wise — who purports to be enforcing Rule of Law — used at the Hunter Biden trial, because it demonstrates how aggressively he polices the boundaries of his own plausible deniability, plausible deniability he used elsewhere in these proceedings to make claims he should know are false.
I’ve already pointed to the nutty response Abbe Lowell elicited from Jason Turner who, when he worked at the gun shop where Hunter bought a gun (he now works for the US Mint!), was in charge of ensuring paperwork was in order.
Turner’s testimony appears to be totally honest. He said, first, that he told Gordon Cleveland to get a second form of ID. And then, without saying whether Cleveland did do so or not, said that if he had, Turner would have written it on the line for doing that.
Q. Then you said that you told Mr. Cleveland something, right?
A. He needed to get further government issued identification with an address on it.
Q. Right. And if he did, what would you do with that?
A. I would have written it right in there. [my emphasis]
When Lowell asks Turner why it’s not on the form, Turner then changes from the conditional tense to the past tense. “I would have written it … I wrote that.”
Four times Turner asserts he did write that he had gotten a vehicle registration.
According to the publicly known facts, he did write it — two or three years after the fact.
Q. But you don’t see such writing in there, do you?
A. When I wrote that out, I wrote the car registration.
Q. You don’t see such a writing in there, do you?
A. When I wrote that out, I wrote car registration.
Q. When you wrote this out, you wrote car registration here or car registration there?
A. 18(b), car registration.
Q. You wrote it?
A. I wrote it.
Q. Where is it?
A. I wrote vehicle registration in there. [my emphasis]
But then Lowell asks him where it is on the form. “It’s not there,” Turner also truthfully describes.
Q. I’m asking you if you did and this is the form, where is it on the form that you say you wrote?
A. It’s not there.
Leo Wise — who purports to be enforcing Rule of Law — interrupts to halt this line of questioning. He states that this line of questioning has been excluded (expanding the already expansive limits on Hunter’s Sixth Amendment Judge Noreika authorized), and then offers up that poor Jason Turner is simply describing his memory of writing the form.
The second form of identity required by rule of law, Leo Wise — who purports to be enforcing rule of law — says, is irrelevant.
MR. WISE: Your Honor, may we approach side-bar?
(Side-bar discussion.
MR. WISE: So this line of questioning was excluded, he has a memory of writing it, he hasn’t established when, he’s not impeached him, he said he remembered writing it in. He’s asking him about the day, but he’s not distinguishing, and this is simply irrelevant, a secondary form of ID is irrelevant.
Lowell responds (and while all the lawyers in this case were willing to game the limits of trial conduct, in this case, this is completely believable) that he had no idea how Turner would respond to his question.
MR. LOWELL: Wow. I have no idea he was about to say what he just said, that he wrote in a different form of identification.
THE COURT: He’s confused as to the time.
MR. LOWELL: I know he is and I’m not going there but he said it, so I just wanted to ask who wrote it, where is it, I didn’t know he was going to say that, judge.
MR. WISE: He did know that because the [Jencks] that we gave you from Palimere, said Palimere told him to write it.
MR. LOWELL: Two years later.
MR. WISE: That’s not your question.
MR. LOWELL: I’m asking him on that day, I’m asking him on that day.
THE COURT: What you can do now is you can just say there is nothing about the vehicle registration. It is not written in this box on this version of the form.
Ultimately, Judge Noreika believes that Lowell had no idea how Turner would respond, because she was surprised herself.
MR. LOWELL: Okay. But let’s be clear on the record, when you say I knew he was going — I had no idea he was going to say that.
THE COURT: I take your word for that. I didn’t know he was going to say that.
After that exchange, Lowell got Turner to concede that the registration was not marked on the form.
(End of side-bar.
BY MR. LOWELL: Q. So what I was asking you is from whatever you just said about the testimony of anything having to do with the registration, you and I can be clear that on this form that has the date on it, there is no such reference in line 18(b), right?
A. There should be.
Now, note that Leo Wise handled cross of Turner and — as we’ll see — of Ron Palimere, the gun shop owner. We know that Derek Hines attended an interview with Palimere in May, and neither prosecutor attended an interview with Cleveland; FBI Agent Erika Jensen did that by herself.
But Wise undoubtedly knows that Hines met with Palimere mere weeks ago, at which Hines reiterated the proffer that prohibited prosecutors from using Palimere’s admission that, “No one thought to get supplemental information” substantiating that Hunter lived at his father’s address because, “everyone in the area knows who lives” there. Wise undoubtedly also knows that Palimere described just writing something convenient in on the form, because “it was all they could think of.”
Palimere decided to write Delaware registration in the box labeled 18.b. Palimere does not know why that was chosen but he knew it had to be an official document and it was all they could think of. Turner was the one who wrote Delaware vehicle registration in the box.
Palimere thinks that if Biden presented a vehicle registration on the day of the sale, it would have been documented on the certified 4473.
Normally, they would call a customer if they found an error/omission and needed to annotate the Form 4473. The ability to annotate the Fom 4473 is allowed by the ATF. For this case, a typical customer would have been called and told they needed to come back in and bring registration to show the residency.
Palimere was not about to call Biden. Palimere felt they could not have him come into the store. Plus, Palimere did not want to contact Biden and tell him he needed to come in and he was being investigated.
Wise undoubtedly knows all that.
But he did something notable to pretend to have plausible deniability about it, to pretend to have nothing to do with any uncertainty that Lowell might introduce.
When Lowell asked Palimere a question he didn’t ask of Turner (whether they had ever met before, a fairly standard trial question), Leo Wise objected when Lowell said that Palimere had met with “prosecutors,” plural.
Q. My name is Abbe Lowell, we’ve never met?
A. No, sir.
Q. Never spoken?
A. No, sir.
Q. You have spoken to the prosecutors and investigators in the case, right?
A. Yes, sir.
Q. And we have —
MR. WISE: Your Honor, I object to that question, prosecutors and investigators, we’ve never met as well.
MR. LOWELL: I’m sorry.
BY MR. LOWELL: Q. You have met with members of the FBI?
A. Yes, sir.
Q. Even recently; correct?
A. Yes, sir. [my emphasis]
Wise objected to the question, one that Palimere had already answered in the affirmative, creating the illusion of plausible deniability, one that served to obscure that Derek Hines had not only met with Palimere, but learned that Palimere knowingly sold a gun without proper paperwork.
Wise had no questions for Parlimere.
But he did for Turner.
Indeed, even before he introduced himself, he asked Turner whether Hunter’s attorneys had succeeded in meeting with him before trial. Turner didn’t respond. Instead he suggested that they had set up a meeting but Hunter’s attorneys, “can’t be on time for nothing.”
Q. Good morning, Mr. Turner.
A. Good morning.
Q. So you were subpoenaed by the defense as a witness, right?
A. Correct.
Q. Did they try to talk with you before they did that, before you testified here today?
A. That’s a whole mess of stuff right there.
Q. Really?
A. I got the subpoena, I had to call them.
Q. Uh-huh.
A. And they can’t be on time for nothing.
Q. What does that mean?
A. I work third shift.
Q. Uh-huh.
A. And so I should be sleeping right now.
Q. What does third shift mean?
A. Third shift, that’s on the other side of the clock from everybody else, I go in at 6:00 p.m., I get done at 5 a.m.
Q. Is that what you got done today?
A. Yes.
Q. All right. So I just have a — you and I have never met, right, Mr. Turner?
A. I don’t even know you from nobody.
Q. I just have a couple of questions?
In fact, Judge Noreika even interrupted to remind Wise to introduce himself!
THE COURT: Did you introduce yourself?
MR. WISE: I’m not sure. I will.
THE COURT: He said he doesn’t know you.
BY MR. WISE: Q. My name is Leo wise, I represent the United States in this case. Nice to meet you.
So if we could have government Exhibit 10A on the screen. This is the form that Mr. Biden filled out that Mr. Lowell asked you about, right?
A. Correct. Actually that form is wrong.
As she did not do when, for example, Kathleen Buhle answered a question that had been excluded from questioning by offering up that Hunter had, “gotten kicked out of the Navy for testing positive for cocaine,” Judge Noreika warned Turner not to answer questions prosecutors had not asked.
THE COURT: Just take it one step at a time, only answer the questions that he asks.
THE WITNESS: Yes, ma’am.
Wise badly wanted to know whether Lowell had learned any of the details prosecutors were hiding from him, so much so he forgot his manners.
Part of this was about preventing jurors from learning that Leo Wise’s application of Rule of Law is, in fact, selective, from learning that Wise’s sidekick Derek Hines had in fact already immunized a potential crime, one with potentially greater impact on society, from these witnesses.
But part of it was also about policing his own plausible deniability.
What Happened to Hunter Biden’s Plea Agreement
Because people who ignored the motion to dismiss proceedings have now decided to weigh in on what happened with Hunter Biden’s failed plea agreement last year, I wanted to lay out what is actually known to have happened, rather than what pretty faces like Ken Dilanian falsely claim happened.
The timeline makes several things clear: First, Weiss did revoke the terms of the immunity agreement he offered in June 2023. But that’s not what killed the plea deal. Hunter was willing to accept a narrowed plea deal. What killed it was Judge Noreika’s intervention in the Diversion Agreement. Once she gave David Weiss the opportunity, he withdrew all remaining meaningful terms of the plea deal, got Special Counsel status, and chased the Alexander Smirnov hoax.
Weiss was personally involved in a plea offer on June 6 that would have immunized Hunter against further charges on the fact set under discussion (so guns, taxes, drugs, and FARA). It remains uncontested that Weiss’ office told Chris Clark on June 19 there was no ongoing investigation.
On July 20, Probation agreed to changes to the Diversion Agreement, seemingly indicating approval. But then, as Wise and Hunter were signing the Diversion Agreement on July 26, the head of Probation told AUSA Ben Wallace she would not sign the Diversion Agreement; no one ever told Hunter this in the hearing or the negotiations immediately after the hearing, but it appears that Judge Maryellen Noreika knew Probation was not going to sign.
Before any specific discussion of scope of immunity, Judge Noreika suggested Probation could veto Diversion Agreement because grant of immunity is too broad. After that, she complained over and over and over that she didn’t get to sign the Diversion Agreement.
At the plea hearing, Leo Wise asserted (contrary to earlier assurances) there was an ongoing investigation. After Wise said the immunity permitted FARA charges and there would be no deal if FARA were excluded, Clark agreed to orally modify the scope of immunity, and by the end of the hearing both Wise and Noreika recognized that. At that point, Hunter believed he had a signed Diversion Agreement covering guns, taxes, and drugs (but no longer FARA).
After complaining that she didn’t get to sign the Diversion Agreement over and over, Noreika deferred the plea, and ordered more briefing.
Hunter pled not guilty.
In their first offer after the plea hearing, Weiss proposed getting rid of judicial arbitration and also eliminating all immunity, effectively throwing out the plea. After Hunter didn’t immediately accept the no-immunity, no-arbiter plea, Weiss got Special Counsel status.
Hunter was willing to take a plea without FARA immunity. But because Noreika wanted the ability to veto the scope of immunity, she didn’t approve the plea. And that led Weiss’ office to immediately revoke all meaningful substance of a plea offer.
Timeline
June 6, 2023: Chris Clark spoke to David Weiss and told him any “Agreement’s immunity provision must ensure Mr. Biden that there would be finality and closure of this investigation.” In response, Lesley Wolf proposed this language, to which Chris Clark agreed on Hunter’s behalf:
The United States agrees not to criminally prosecute Biden, outside of the terms of this Agreement, for any federal crimes encompassed by the attached Statement of Facts (Attachment A) and the Statement of Facts attached as Exhibit 1 to the Memorandum of Plea Agreement filed this same day.
June 7: Bill Barr tells Margot Cleveland that the Smirnov FD-1023 had been sent to David Weiss for further investigation.
It’s not true. It wasn’t closed down,” William Barr told The Federalist on Tuesday in response to Democrat Rep. Jamie Raskin’s claim that the former attorney general and his “handpicked prosecutor” had ended an investigation into a confidential human source’s allegation that Joe Biden had agreed to a $5 million bribe. “On the contrary,” Barr stressed, “it was sent to Delaware for further investigation.”
June 19: Per claim from Chris Clark that Weiss never contested in Motions litigation, Weiss’ First AUSA told him that there was not another open or pending investigation into Hunter Biden.
Shortly after that email, I had another phone call with AUSA Hanson, during which AUSA Hanson requested that the language of Mr. Biden’s press statement be slightly revised. She proposed saying that the investigation would be “resolved” rather than “concluded.” I then asked her directly whether there was any other open or pending investigation of Mr. Biden overseen by the Delaware U.S. Attorney’s Office, and she responded there was not another open or pending investigation.
July 19: Chief of Probation Margaret Bray recommends Hunter for 24-month diversion.
July 20: AUSA Benjamin Wallace tells Noreika’s Courtroom Deputy that the government, Hunter’s team, and Probation have agreed to changes in the diversion agreement.
The parties and Probation have agreed to revisions to the diversion agreement to more closely match the conditions of pretrial release that Probation recommended in the pretrial services report issued yesterday.
July 20: Chuck Grassley and James Comer release Smirnov FD-1023.
July, ND (per indictment): FBI requests Weiss assistance in investigation of FD-1023.
July 26 Plea agreement (note, the links to the transcript come from references Judge Noreika made in her order denying immunity under the Diversion Agreement, as well as all the complaints about not getting to sign the Diversion Agreement which she left out; the order is best understood as an effort to refashion her own intervention):
- Before Noreika enters the room: Leo Wise and Hunter Biden sign Diversion Agreement
- As Wise and Biden are signing Diversion Agreement, Wallace approaches Bray regarding Diversion agreement, and she, “expressly declined to sign the draft diversion agreement” [at this point, the prosecution and Probation know she has refused to sign, but Hunter does not; for reasons I laid out here, it appears Noreika did know Bray was not going to sign]
- 12: Noreika does plea colloquy
- 40: Hunter says he’s relying on promises in Diversion Agreement
- 42: Noreika asks whether this is a plea under Rule 11(c)(1)(B) or Rule 11(c)(1)(A)
- 43: Clark says the plea stands alone
- 45: Clark says government has reassured him they’ll stand by Diversion Agreement
- 47: Noreika suggests Probation could reject the Diversion because immunity grant was too broad; Wise says that’s discretion of DOJ
- 48: Wallace — the only prosecutor who definitely knew Probation had refused to sign — agrees that if the immunity were in the plea, it’d be under Rule 11(c)(1)(A)
- 51: Wise says there’s an ongoing investigation (conflicting with reassurance offered by Weiss’ office in June)
- 51: Noreika complains she can’t sign the Diversion Agreement
- 52: Clark says the Diversion Agreement has been approved by Probation; no one corrects him
- 52: Noreika complains the Diversion Agreement treats her as a rubber stamp
- 56: Wise says they could bring FARA charges
- 56: Wise says if FARA is included, then “there is no deal”
- 58: Clark agrees to orally modify immunity provision to apply to only drugs, guns, and taxes
- 84: Wise says the parties to the Diversion Agreement are DOJ and Hunter
- 90: Wise states that the immunity paragraph has been orally modified to apply only to drugs, guns, and taxes
- 93: Noreika complains that there’s no place for her to sign off on Diversion Agreement
- 96: Noreika complains that DOJ won’t be able to charge Hunter if she doesn’t agree he has violated Diversion Agreement
- 102: Wise repeats that they’ve agreed to terms of Diversion Agreement
- 105: Noreika complains that she doesn’t have the ability to sign off on immunity
- 105: Noreika defers plea
- 106: Noreika asks for briefing on why it’s a plea under Rule 11(c)(1)(B)
- 106: Noreika recognizes Clark has orally modified the scope of immunity, but tells him to put it into writing
- 110: Hunter pleads not guilty
July 31 DOJ proposes changes:
- Eliminate judge as arbiter
- Delete immunity provision
- Eliminate cross reference between plea and Diversion agreements
August 7: Clark insists on retaining judge as arbiter and retaining immunity provision
August 9: Wise withdraws all agreements by August 11
August 10: Clark asks to have until August 14
August 11: Before Hunter can respond, Weiss withdraws tax agreement and Garland names Weiss Special Counsel
August 29: FBI interviews Smirnov handler
August 29: Weiss tells Lowell they insist on felony pleas, claims they don’t have to rely on laptop
September 27: FBI interviews Smirnov
The Scolding that Hunter Biden Should Have Pled Guilty Ignores the Complexity of What Happened
In the wake of yesterday’s verdict against Hunter Biden, there are a lot of armchair quarterbacks and hacks mulling why Hunter Biden didn’t simply plead guilty.
One of the only thoughtful, factually accurate pieces I’ve seen is this, from Dennis Aftergut. After accurately describing how David Weiss reneged on the original plea deal in the face of Republican pressure, Aftergut nevertheless describes that Hunter should have pled guilty anyway, assuming that the judge who intervened to kill the diversion that would have amounted to a probation sentence would sentence Hunter leniently if he took responsibility as he tried to last July.
Maybe he thinks he’s got a chance on appeal, given the Supreme Court’s expansion of Second Amendment rights. But successful appeals of criminal convictions are historically very long shots — about 1 in 15 get reversed — and it’s hard to see appellate courts ruling that the right to buy a gun includes the right to lie to get one.
The conviction will hurt Hunter Biden’s father personally, and it can’t help him politically. The right wing’s fact-free attempts to link President Biden to his son’s criminality would have been there even with a plea, but Hunter taking responsibility for his conduct would have diminished the MAGA narrative’s staying power.
One thing’s for sure: The hung jury or the acquittal Hunter Biden was hoping for would have been a political disaster for his father — and for the nation, in this election where the rule of law is on the ballot. For many in the media and for a substantial portion of the electorate, former President Donald Trump’s conviction for falsifying business records in connection with buying Stormy Daniels’ silence to corrupt the 2016 election contrasted with Hunter’s non-conviction would have exponentially amplified the MAGA screams claiming that there are two standards of justice.
Even ignoring Noreika’s statements (including a comment in a bench conference that she thinks Hunter violated the law by putting his dad’s address on the gun form), one problem with these think pieces is, to the extent they consider appeals, they usually limit their consideration of the nature of appeal. Most, as Aftergut did, focus primarily on a Breun appeal of the gun charge.
Prosecutors charged this to make such a challenge almost useless. Even at the plea hearing, Judge Noreika inquired why prosecutors hadn’t included a felony false statements charge, particularly in light of constitutional challenges to the underlying statute.
THE COURT: I have had one or two cases involving a person struggling with addiction who bought a gun, we usually see a felony charge for false statement. The Defendant has admitted that his statement was false, but he wasn’t charged. Again, I’m not trying to get into the purview of the prosecutor, and I understand the separation of powers, it’s in your discretion, but I just want to ask, does the government have any concern about not bringing the false statement charge in light of our discussion of 922(g)(3) and the constitutionality of that charge.
And in their response to Hunter’s constitutional challenge, prosecutors argued that the false statements charges would survive even if SCOTUS overturned the possession charge.
The Supreme Court has concluded in many cases, across many decades, and in many different contexts that a defendant cannot make a false statement to evade a statute the defendant believes is unconstitutional and escape criminal liability for the false statement by arguing the unconstitutionality voids his knowingly false statement: “Our legal system provides methods for challenging the Government’s right to ask questions—lying is not one of them. A citizen may decline to answer the question, or answer it honestly, but he cannot with impunity knowingly and willfully answer with a falsehood.” LaChance v. Erikson, 522 U.S. 262, 265 (1998) (quoting Bryson v. United States, 396 U.S. 64, 72 (1969)). In 1937, for example, the Supreme Court held that defendants charged with defrauding the United States by misrepresenting the identity of hog producers could not escape criminal liability by arguing that the statute and regulations requiring the information to be furnished were unconstitutional. See United States v. Kapp, 302 U.S. 214, 215, 218 (1937)
By charging possession and false statements, prosecutors made it risky at best to plead guilty with the intent of appealing on constitutional grounds alone, because the false statements charges with the same punishment may well survive a successful constitutional challenge anyway.
At least until Judge Noreika prohibited Hunter from introducing the doctored purchase record or even pressing gun shop employees about it, Hunter had a shot at raising questions about other elements of offense on the two documents charge. Indeed, per Juror 10, the question of whether Hunter’s lie on the form was material is the one thing that held up a conviction yesterday, so a bid for acquittal on the document charges had more promise than defeating the possession charge.
Biden also filed an as-applied challenge after the government rested, arguing that the facts as presented at trial make the charge unconstitutional, something that required developing a trial record. That, too, may have been defeated by Leo Wise’s exceptional prosecutorial dickishness. Notably, Lowell argued there was no location data showing him at 7-Eleven.
There is no video of Mr. Biden at the 7-11 or CCTV of him near the intersection where he was supposedly sleeping on his car, no location evidence (and if there was, there are bars and restaurants in the areas as well) , or any other evidence.
And then prosecutors used the pretext of an answer Naomi Biden made to introduce just such evidence, effectively using their pretextual rebuttal argument to fight this as-applied appeal.
Aftergut notes in his piece that Hunter also challenged the indictment on a selective and vindictive basis, which he also describes is almost impossible to win. That remains true. But even in the lead-up to the trial, prosecutors had to confess that the government discovered in 2021 that the gun shop may have also violated the law with regards to this sale by doctoring the form after the fact, but nevertheless extended a proffer to the gun shop owner so he could confess he sold the gun without second ID because he wanted to get Joe Biden’s son out of his store quickly. Prosecutors also turned over evidence that the gun shop owner had worked to make this gun sale public in 2020 in hopes of raising the political pressure on the case not being charged. By going to trial, Hunter developed evidence that prosecutors chose to charge Hunter while providing a proffer to the guy who brought pressure to charge it in the first place.
And there’s a fact set regarding claims of vindictive prosecution that are unprecedented. Noreika simply ignored the import of Weiss’ decision to renege on the deal because he decided to chase the transparently false Alexander Smirnov lead that he had first gotten in 2020, something that Abbe Lowell preserved before her (but did less well before Judge Scarsi). It is literally the case that Donald Trump’s Attorney General set up a side channel for dirt from known Russian spies that resulted in an attempt to frame Joe Biden and that attempt to frame Joe Biden was the reason prosecutors reneged on the deal last summer.
Aftergut is silent about an appeal on the immunity claim, Hunter Biden’s belief that the original diversion agreement which both parties signed prohibited the government from charging these felonies. As it is, there is a District conflict, with Judge Mark Scarsi ruling that the diversion agreement was valid but had not been put into effect, and Judge Noreika ruling that — after her own head of Probation had refused to sign a deal she had already approved — the deal never went into place. If an appeal of that succeeds, especially if it were quick and succeeded before September, then the September trial might be affected as well.
Abbe Lowell also seems to at least suspect that prosecutors have withheld Brady material, which if he can ever prove it, is another thing that would undermine this prosecution.
Now, Hunter could have challenged some of these without going through the pain of trial. But not all of them.
What we have watched since last July is an incredibly contentious fight in which prosecutors who, as Republicans wailed and threats proliferated, chased the false claims of a guy with ties to Russian intelligence, and now demand that Hunter simply suck up felonies because they did so.
And things get worse as we move to Los Angeles. There, the felony counts for writing off payments to people like Lunden Roberts (and several other women, one of whom may be Zoe Kestan, whose fashion business Hunter was fronting) are charged along with three counts of dubious propriety: the 2016 failure to pay (for which Hunter has argued statutes of limitation have expired) and 2017 and 2018 failure to file, for which venue is either definitely (for tax year 2017) or arguably (for tax year 2018) invalid. Hunter could plead to that indictment, but he’d be pleading to charges that were improperly filed.
Prosecutors have promised to make the Los Angeles trial even more cruelly embarrassing than the Delaware trial, introducing a bunch of evidence of influence-peddling that should be unrelated to the tax charges charged. That is, if Hunter goes to trial to argue that he didn’t remember some of the expenses he wrote off and got advice supporting others, Weiss’ team at least plans on airing Hunter’s relationship with people like Tony Bobulinski, yet another witness in this case alleged of wrong-doing on his own part but not charged.
But here’s the thing everyone keeps forgetting: going to trial may not matter. Because Merrick Garland capitulated to David Weiss’ demand for Special Counsel status to chase Alexander Smirnov’s false claims, Weiss gets to write a report. We’ve already seen John Durham simply fabricate things in his report, including things (like a narrative of all the investigations into Hillary during the 2016 election that Durham deceitfully claimed showed special treatment) that were far afield of the investigation itself. And Weiss’ prosecutors have already proven even more dishonest, with Derek Hines falsely implying he found Hunter Biden’s 2019 New Haven crack pipe in Wilmington in October 2018 on four different occasions, the narrative equivalent of a dirty Baltimore cop framing a defendant by bringing a crack pipe to an alleged crime scene and planting it.
Because David Weiss got the mandate to file a report because he chased Alexander Smirnov’s false claims, recent practice means he can say pretty much anything about Hunter Biden in a report he wants. Weiss’ prosecutors did something incredibly stupid and as a result they’re rewarded with a guaranteed opportunity to dirty up Hunter Biden some more.
So the only difference between deliberate humiliation in a September trial and deliberate humiliation in a report is when it takes place. Leo Wise and Derek Hines have made it clear they plan to continue humiliating Hunter Biden no matter what he does.
And that changes the calculus.
It may not change the wisdom of pleading out, perhaps pleading out in Los Angeles before a September trial brings out the obscene Tiger Beat journalists again for the election period.
But it does make simple bromides about how much better it would be to plead out overly simplistic.
“Case Changing:” The 7-Eleven Messages
It can’t be overstated the degree to which calling Naomi Biden to testify backfired on Hunter Biden.
Contrary to the claims of the Tiger Beat reporters at the courthouse, she wasn’t called to “humanize” her father. Rather, they intended to rebut a claim that Hallie Biden had made about the truck: that the console lock had been broken.
Q. So now, your dad has the truck, when you gave your dad the truck, I want you to describe the inside of it. Does the truck have a console?
A. Yes.
Q. And underneath the console, what’s there?
A. It’s like a safe.
Q. And meaning it’s a steel or metal object?
A. Yeah.
Q. Does it have a lock or does it not have a lock?
A. It has a lock.
Q. And when you and Peter had it at the period of time in October, was the safe working?
A. Yes.
Q. Was it broken?
A. No.
Even that backfired. Leo Wise used Naomi’s testimony about a clean truck as circumstantial evidence that between October 19 and October 23, Hunter did crack.
And if you compare what Naomi Biden said that she returned the truck to her father clean on October 19th, 2018, that there were no drug remnants in it and there was no drug paraphernalia in it, to Hallie Biden’s testimony that she searched the truck on October 23rd, just a few days later, that she found drug remnants. Remember, the way she testified what a drug remnant is, is when you break pieces, smaller pieces of crack off a larger rock, a lot of it falls and breaks off, that’s what a remnant is, and that’s what Hallie Biden saw in that truck on October the 23rd, and she also found drug paraphernalia.
So what does that mean? What does a clean truck with no drug remnants and no drug paraphernalia on October 19th, as in the testimony of the defendant’s own daughter, and then a truck with drug remnants and drug paraphernalia on the October the 23rd, what does that mean?
It means the defendant used crack in the truck between October 15th, 2018, and October 23, 2018, October 19th, when he got it back.
On cross, Naomi’s claims that her father seemed hopeful in this period quickly fell flat, as prosecutors showed her her own texts frowning that she didn’t get to spend much time with him while he was in NYC.
Q. Well, if we go to the next page, did you send your father a series of texts where you told him that you were in Brooklyn, but that you could have Peter meet him and trade, then did you ask your father if he had seen Peter and did he ask if — and did you ask if you would get to see him, in other words, your dad?
A. Yes.
Q. And was your dad’s response no? This is on page 1719? A. I think he’s saying no to did he call.
Q. Your next message then is “so no see you?!”
A. Yeah.
Q. And then you said, it looks like you did sort of an unhappy face, and the next text? A. Are you asking?
Q. Yes.
A. Yes.
Q. And then the next one is “I’m really sorry, dad, I can’t take this.” And then “I don’t know what to say, I just miss you so much, I just want to hang out with you.” Right?
A. Yeah.
That would have been enough in any case to undermine any defense claim that Hunter had cleaned up in the period he owned the gun.
But then, at 9:30 the night before closing arguments, after originally saying they wouldn’t put on a rebuttal case, prosecutors called Abbe Lowell to say they needed to do so because Naomi misspoke about what day her father had arrived in NYC, the 15th rather than the 17th (actually, she responded in the affirmative when Lowell asked her whether, “When he drove it up, do you recall about what day it was in October, was that October 15th?”).
MR. LOWELL: Last night at 9:30 or whatever after the government said they would not have a rebuttal case, they wrote while preparing for closing argument, and reviewing transcript this evening, we realized that Naomi Biden provided inaccurate testimony about the date when the defendant traveled to New York. That’s what they wrote, that’s the need for rebuttal. I understand, we can address that.
What they have done after that late at night was to provide us a new set of texts, forty-two of them, to propose in between before he got to New York where he was, who he was talking with, and what he was doing, which includes references that could be to try to contact or have people that were contacting him for possible drug use, that was not put in their case-in-chief. If what they said, and this is rebuttal, this is a rebuttal case as to where he was or whether Naomi was wrong, then that’s what the rebuttal is. That doesn’t need forty-two texts that includes all kinds ever other language.
We would be prepared to stipulate that either he you heard evidence from Naomi Biden that he arrived and was there the 15th, that’s not correct it was a few days later, or we can stipulate as to whether he got there, on or we can stipulate as to what locations he was, but then to have forty-two texts of all this other material that they could have proposed is not rebuttal for the proposition, which would be proper rebuttal, and if it was even remotely relevant to that which was the date, then it would be prejudicial beyond any relevance.
To prove that Naomi got the date wrong — to which Hunter’s team was happy to stipulate — prosecutors said that justified submitting 42 new texts as evidence, texts which had not been provided as a potential exhibit before, texts the defense received the morning of the hearing.
Prosecutors used the date discrepancy to submit a bunch of texts showing Hunter hade been arranging meetings at a 7-Eleven.
MR. HINES: The first thing I’ll say is all of these text messages do link to our proof that he was still in Delaware on October 15th, but nonetheless our rebuttal case is not limited, there is no rule of evidence that limits a rebuttal case to exactly the words that the defense witness testified to.
What I’ll say on how it relates to the 15th is that we have location information showing him at a 7-Eleven on October 14th, 15th and 16th, I believe those are the dates that’s reflected in the summary chart.
And location information and a photograph is just that, it’s location information, it does not identify whether the person themself was actually necessarily at that location because the photograph shows a geolocation, it could have been someone else’s photograph. So the other messages that we included are all messages, et cetera, that show the defendant did frequent a 7-Eleven, they are just messages from October 9th through that date when he left the area showing that he was communicating with other individuals to meet at a 7-Eleven.
By doing so, just before closing arguments (and giving Lowell no time to prepare), prosecutors submitted evidence of Hunter trying to meet a guy named Q at a 7-Eleven.
As Lowell described when he vigorously objected, showing texts from October 10 would not rebut Naomi’s perspective of what Hunter looked like on October 19; it was case changing.
MR. LOWELL: I am going to be repetitive, this is a case changing event and it shouldn’t be a case changing event where they shoehorn in this. What is relevant to rebut her perception of him on the 19th can be what? If he didn’t use drugs two weeks before does that rebut her perception? Six days before we know when he is on crack. He has to do it every twenty minutes according to the testimony. There is a disconnect, there is an extraordinary disconnect from her saying I saw him, maybe she wants to look at him in blinders, maybe she doesn’t say what he does, but that’s not —
Particularly given Hunter’s reference to meeting dealers at 7-Eleven in his memoir, this was some of the prosecution’s most probative evidence that he had bought drugs immediately before buying the gun. Indeed, they were among the few things Leo Wise mentioned in laying out the actual circumstantial evidence he was doing drugs that week.
What do we know specifically about that month of October. You see on the screen those drug messages on the 13th and the 14th. You see the addiction messages depicted on the 15th and the 23rd. You see the meeting messages on the 10th and the 11th, the day before he bought the gun on the 12th, and you see on the 23rd both addiction messages and drug remnants and drug paraphernalia recovered by Hallie Biden in the truck. [my emphasis]
Noreika’s decision to allow prosecutors to submit messages from a week before Naomi saw her father to rebut her claim that he looked fine is another of the decisions Lowell will include in any potential appeal.
It’s also a decision, and a development, that hasn’t been fully explained.
There’s a lot of armchair punditry about whether Hunter should have pled guilty (most of which misrepresents what happened to the plea deal, though this is an exception). But few understand how prosecutors used the mere fact that Naomi testified as an excuse to introduce texts that should have been in their case-in-chief.