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Hunter Biden Moves to Enjoin David Weiss Under an Appropriations Argument Trump Adopted

Abbe Lowell has moved to enjoin David Weiss from spending any more unappropriated funds in the prosecution of Hunter Biden.

Mr. Biden moves to enjoin the Special Counsel’s investigation and prosecution of him from now into the future because the Special Counsel lacks a valid appropriation from Congress. Previously, Mr. Biden moved to dismiss the indictment as the tainted fruit of past Appropriations Clause violations (D.E.62). Had that motion been granted, no future violation would have occurred. That said, the Special Counsel insisted dismissal was not the proper remedy and that alleged Appropriations Clause violations “are ‘best seen as requests for injunctions.’” (D.E.72 at 24 (quoting United States v. Bilodeau, 24 F.4th 705, 711 n.6 (1st Cir. 2022)).) Although Mr. Biden preferred dismissal as a remedy (i.e., how could one enjoin past violations?), he did not object to injunctive relief, explaining: “Under either view, this case could not proceed, so it is unclear how the Special Counsel’s preferred remedy would benefit him.” (D.E.80 at 16.) This Court, however, found no Appropriations Clause violation, so it did not reach the question of the appropriate remedy. (D.E.101.) 1

1 At this morning’s hearing, the Court questioned the timeliness of this Motion. As explained above, the Motion is timely because the prior motion to dismiss the indictment was for past Appropriations Clause violations and Mr. Biden now seeks to enjoin future constitutional violations. While the time has passed for Mr. Biden to bring pre-trial motions to dismiss based on the Special Counsel’s past decision to indict, nothing prevents Mr. Biden from seeking to enjoin future constitutional violations. The Special Counsel cannot be given a blank check to indefinitely spend unappropriated federal funds in violation of the Appropriations Clause. The need to explicitly seek injunctive relief did not arise until the Third Circuit Motion Panel’s May 9, 2024 decision dismissed the appeal under 28 U.S.C. § 1292(a) because injunctive relief was not explicitly requested, and the Court declined to hear Biden’s claim for relief at law (dismissal) on an interlocutory basis. Parties frequently seek to cure defects identified by opinions, for example, plaintiffs often file amended complaints and prosecutors file superseding indictments following motions to dismiss all the time, and the situation is no different here. Additionally, the prior scheduling order for pre-trial motions were for motions to dismiss. (D.E.57.) The parties clearly understood there were other “pre-trial motions” that would be filed addressing future issues and this Court set a new schedule for addressing some of those issues (D.E.117 (e.g., motions in limine, expert disclosure motion)), and the Special Counsel filing several such motions in limine this morning. The Court has not limited the Special Counsel orMr. Biden’s from objectingto any kind of future conduct.

Lowell is doing so because the Third Circuit order finding that none of Hunter’s appeals merited interlocutory jurisdiction rejected his challenge to Weiss’ Special Counsel appointment (which argued both the appointing a sitting US Attorney SCO violated DOJ’s own rules and also that Weiss’ appointment was not appropriated) in part because Judge Noreika had not formally refused his injunction.

In the defendant’s third motion to dismiss, he argued (1) the prosecuting U.S. Attorney’s appointment as a special counsel violated 28 C.F.R. § 600.3(a)’s requirement that special counsel be “selected from outside the United States Government” and (2) the Special Counsel improperly used an appropriation established by Congress for “independent” counsel without the requisite independence. See United States v. Biden, No. 1:23-cr-00061-001, 2024 WL 1603775 (D. Del. Apr. 12, 2024). The defendant contends the denial of this motion is appealable because it, in effect, refused him an injunction. The District Court did not explicitly refuse to enjoin the continued appointment of the special counsel, nor the continued use of appropriation of funds, nor did the defendant explicitly ask for such an injunction. Furthermore, the defendant has not shown the order has a “serious, perhaps irreparable, consequence” and can be “effect[ually] challenged only by immediate appeal.” See, e.g., Office of the Comm’r of Baseball v. Markell, 579 F.3d 293, 297–98 (3d Cir. 2009) (citing Carson v. Am. Brands, Inc., 450 U.S. 79, 84 (1981)). Accordingly, the denial of the defendant’s third motion to dismiss is not an appealable order denying an injunction.

The District Court’s denial of the defendant’s third motion is also not appealable as a collateral order. For collateral-order purposes, the rejection of the defendant’s claim that the Special Counsel’s appointment violated a regulation is analogous to other challenges to a prosecutor’s appointment or authority. Rejection of these challenges do not constitute collateral orders. See Deaver v. United States, 483 U.S. 1301, 1301–03 (1987) (Rehnquist, C.J., in chambers); United States v. Wallach, 870 F.2d 902, 907 (2d Cir. 1989); Deaver v. Seymour, 822 F.2d 66, 70–71 (D.C. Cir. 1987); United States v. Caggiano, 660 F.2d 184, 191 & n.7 (6th Cir. 1981). Moreover, categorically similar issues have been reviewed on appeal after a final or otherwise appealable decision. E.g., Morrison v. Olson, 487 U.S. 654, 668, 659 (1988); In re Grand Jury Investigation, 916 F.3d 1047, 1051 (D.C. Cir. 2019); United States v. Blackley, 167 F.3d 543, 545–49 (D.C. Cir. 1999); United States v. Wade, 83 F.3d 196, 197–98 (8th Cir. 1996); United States v. Prueitt, 540 F.2d 995, 999–1003 (9th Cir. 1976); In re Persico, 522 F.2d 41, 44–46 (2d Cir. 1975). Similarly, there is no collateral-order jurisdiction over the District Court’s rejection of the defendant’s appropriation argument and this order can be effectively reviewed after final judgment. E.g., United States v. Trevino, 7 F.4th 414, 420–23 (6th Cir. 2021); cf. United States v. Bilodeau, 24 F.4th 705, 711–12 (1st Cir. 2022) (finding appellant’s injunction request could not be effectively reviewed after final judgment). [my emphasis]

In other words, Lowell asked for this injunction so Noreika would refuse it, giving him a better shot at appeal before the Third Circuit.

I’ve consistently said I think this challenge is garbage — garbage on precedent and garbage on DOJ rules.

I still do — though David Weiss’ persistent efforts to claim he is also, simultaneously, the US Attorney who made deals he has since reneged on with Hunter Biden could make the challenge more interesting down the road. Effectively, David Weiss is claiming to be both SCO and US Attorney, all while hiding discovery US Attorney David Weiss knows to exist.

That said, since Hunter first made this argument, Trump has adopted it (I’ve got a post started comparing these things, but remember that Trump was indicted on the stolen documents case two months before Hunter was indicted on gun crimes, but Hunter’s gun trial is scheduled to be done before any of these frivolous hearings start in Florida) — with backing from right wing luminaries like Ed Meese. And Judge Cannon is so impressed with the garbage argument she has scheduled a hearing on it for June 21.

And Hunter has argued this same (IMO, garbage) argument in Los Angeles and the Ninth Circuit, where precedents for such appeals are somewhat more lenient (which Lowell addressed in a follow-up after the Third Circuit decision).

I’m not saying any of this will work. I think Lowell might be better served asking to make an amicus argument before Judge Cannon, if it’s not too late, if only because that’ll disrupt the political bias with which Cannon has run her courtroom. (Though again, that would do nothing to spare Hunter a trial.) We have long since spun free of actual evidence much less law in all these three Trump appointed judge’s courtrooms.

But Hunter’s continued effort to push this may complicate Cannon’s effort to treat this as a novel right wing argument. It could even — though this is unlikely — create a circuit split long before Cannon gets her show hearing. Or it could confuse the right wingers on SCOTUS.

The SCO challenge, in my opinion, is not interesting at all on the law. But the way in which these two cases are working in parallel on this point in particular makes the effort to better frame an appeal immediately more interesting.

Update: Unsurprisingly, the 9th Circuit — a panel of all Dem appointees — rejected Hunter Biden’s bid for interlocutory appeals of his failed Motions to Dismiss.

David Weiss Continues to Misrepresent the Damage Keith Ablow Did to Hunter Biden’s Addiction

May 14, 2024/23 Comments/in 2024 Presidential Election, Hunter Biden /by emptywheel

Prosecutors have submitted their motions in limine in the Delaware case. Those include:

Prohibiting Hunter from arguing that prosecutors have to prove he used drugs on the day of the gun purchase (no position from Hunter noted)
Admitting misleading portions of Hunter’s book
- Proposed portions
Finding electronic evidence (including both the iCloud data and the laptop) self-authenticating
- Robert Gearhart declaration
- Michael Waski declaration
Prohibiting mention of declination decision in Delaware
- Declination
Excluding defects in prosecution
Excluding evidence about later sobriety
Excluding claim gun charges unconstitutional
Excluding discussion of plea negotiations

Most of these are pretty standard and uncontroversial — though Abbe Lowell made it clear that he reserves the right to contest whether Hunter’s iCloud and laptop had been tampered with before the government obtained them.

Where David Weiss has doubled down on past error comes in his choice of book excerpts he wants to use.

He wants to exclude everything from the book except the excerpts he has chosen.

The government intends to admit into evidence only the excerpts of the book and audiobook that are in Exhibit 1. Federal Rule of Evidence 801(d)(2) provides the statement must be “a statement . . . offered against an opposing party.” Thus, a defendant cannot elicit his own self-serving statements without taking the stand and submitting to cross-examination. United States v. Willis, 759 F.2d 1486, 1501 (11th Cir. 1985); United States v. Wilkerson, 84 F.3d 692, 696 (4th Cir. 1996).

A defendant cannot sidestep the prohibition against hearsay by invoking the so-called “rule of completeness,” contained in Federal Rule of Evidence 106. This rule is designed to prevent “misunderstanding or distortion” caused by the introduction of only part of a statement that could only be cured by admission of the full record. Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 172 (1988). It does not allow adverse parties to introduce any unedited statement merely because the proponent party has offered an edited version. Indeed, “it is often perfectly proper to admit segments of prior testimony without including everything, and adverse parties are not entitled to offer additional segments just because they are there and the proponent has not offered them.” United States v. Collicott, 92 F.3d 973, 983 (9th Cir. 1996). The defendant has not identified for the government any portions of the excerpts that are misleading without additional surrounding context. The other portions of the book are therefore inadmissible hearsay.

The selections are not surprising. But in two ways, they are grotesquely dishonest. First, the chosen excerpts misleadingly lead from something that happened in August 2018.

To something that happened in February 2019.

Presented in the way it is, jurors will be wildly misled that Hunter’s New Haven exploits are what happened immediately after he relapsed in August 2018. They will be misled into believing the description of the New Haven depravity represent Hunter’s state in October 2018. They don’t.

Here’s what the language in the book describing his return to Delaware in fall 2018 looks like.

I had returned that fall of 2018, after my most recent relapse in California, with the hope of getting clean through a new therapy and reconciling with Hallie.

Neither happened.

For all the obvious reasons—my extended disappearances, my inability to stay sober, her need to stabilize and reorder her own life and family—Hallie and I called it quits. The relationship no longer helped either of us. Our attempt to reanimate Beau remained as doomed as it was from the start. The fallout piled up. I tried to explain things to my daughters, but how could I expect them to comprehend a situation I hardly understood myself?

Next on my agenda was getting clean. I drove up to Newburyport, Massachusetts, an old New England shipbuilding-turned-tourist town thirty-five miles north of Boston. A therapist ran a wellness center where he practiced a drug addiction therapy known as ketamine infusion. I would make two trips up there, staying for about six weeks on the first visit, returning to Maryland, then heading back for a couple weeks of follow-up in February of the new year.

Prosecutors were perfectly willing to use the transition into this passage in their response to Hunter’s MTD.

He wrote in Chapter 10 of his memoir, “I returned [to the East Coast] that fall of 2018, after my most recent relapse in California, with the hope of getting clean through a new therapy . . . Neither happened.” Id. at 203.

Perhaps now they’ve discovered that the book says nothing about Hunter’s state of mind when he was in Delaware, when he owned the gun.

More importantly, David Weiss repeats what might have been just another stupid error when he made it in response to Hunter’s motion to dismiss:

For example, the defendant admitted that he was experiencing “full blown addiction” to crack cocaine and by the fall of 2018 he had gotten to the point that:

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.

David Weiss misrepresented this passage to Judge Noreika (and has not alerted her to the error). The scene in the Super 8 took place in February 2019.

Which means it took place after Keith Ablow’s treatment made Hunter Biden’s addiction worse.

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. [my emphasis]

Weiss wants to exclude this critical context, imagining that Hunter included the Keith Ablow description because he knew that right wingers would demand he be prosecuted for the gun when he wrote it (Weiss emphasizes that Hunter started writing this in 2019, before he even knew of the investigation), and so said that the Ketamine treatment made his addiction worse for the moment he would be prosecuted.

I get what self-serving hearsay is. This is not it (though Judge Noreika has thus far been wildly favorable to Weiss’ misrepresentations).

This is basic facts of timeline — or more specifically, Weiss’ continued effort to misrepresent events that clearly happened in February 2019 as if they’re his smoking gun about 2018.

Barr Time 1: “Conjuring up criminal conspiracies about political opponents”

May 11, 2024/51 Comments/in 2020 Presidential Election, 2024 Presidential Election, emptywheel, Hunter Biden, Mueller Probe /by emptywheel

June 6 of last year was the official publication date for Bill Barr’s book. In it, he claimed — at least three different times — that under him, DOJ did not investigate Joe Biden’s role in pushing Petro Poroshenko to fire Viktor Shokin. “[T]he facts about this episode were out in the open and didn’t warrant a criminal investigation,” Barr said in one instance.

The day after release of a book making that assertion, on June 7, 2023, Bill Barr went on the record with Margot Cleveland insisting that investigation into an allegation that we now know came from Alexander Smirnov, claiming that Mykola Zlochevsky had bribed Joe Biden, not only hadn’t been shut down in August 2020, but had been sent to Delaware “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.”

On June 6, Bill Barr claimed his DOJ didn’t investigate Biden’s ties to Burisma because all the facts were out in the open. On June 7, he insisted DOJ had sustained a secret investigation into an allegation that Burisma bribed Joe Biden.

Barr’s book mentions Ukraine almost 70 times. He mentions the Bidens, in an investigative context, over 56 times. Virtually everything he says on the topic conflicts as dramatically with known events as that claim on June 7 did.

It was always clear these claims were an attempt to spin the events, Barr’s CYA about fairly damning events in which he was involved. Given the subsequent disclosures of the the SDNY warrants, claims Lev Parnas’ has made since this book came out, Brady’s testimony about the side channel, and Smirnov’s indictment, I want to look at how Barr describes his involvement in efforts to investigate Joe Biden and his son.

At best, they show that Bill Barr was an easy mark for Russian disinformation.

Barr needed a bribery allegation and an informant fabricated it for him

Here’s how Barr describes the Brady side channel, which we now know resulted in an FBI informant with ties to Russian spies fabricating a claim about Joe Biden that right wingers successfully demanded be used to renege on a plea deal for Hunter Biden during the 2024 election season, a claim that — had Brady done the vetting he and Barr claimed he did — would have been identified as a fabrication in 2020.

With impeachment still pending, Giuliani embarked on yet another round of grandstanding. He went about claiming he had compiled significant evidence relating to the Bidens that he wanted to present to the Justice Department. While anyone is free to present evidence to the DOJ, the fact Giuliani was making such a public display obviously made his motives suspect. It looked to me that Rudy was trying to run the same play against Biden that I thought the Clinton campaign had tried to run against Trump in 2016: giving just enough evidence to law enforcement to have some allegation investigated, then claiming one’s adversary was “being investigated.” This presented a quandary. On the one hand, I wasn’t going to let the department be drawn into Giuliani’s game, and I wasn’t about to allow the work of other prosecutors on other, potentially related matters be tainted by commingling their evidence with whatever Giuliani had pulled together. On the other hand, the department has an obligation to be open to all comers who believe they possess relevant evidence; we could not merely dismiss his information out of hand without looking at it. Yet merely receiving information does not imply the department believes opening an investigation is warranted. My solution to Giuliani’s posturing was to create an intake system for evidence originating in Ukraine—including but not limited to Giuliani’s—that dispelled any suggestion that, by accepting the information, the department was signaling it considered the allegations credible.

I set up a screening process whereby an office outside of Washington—in this case, the US Attorney’s Office in Pittsburgh— would vet the information provided by Giuliani, working with the FBI and intelligence experts on Ukraine. That office, which was run by a trusted US attorney, Scott Brady, who was well known to me and my staff, would not be responsible for deciding whether to open any investigation, just for assessing the credibility of the information. This would be an intermediary step before any information was forwarded to an office responsible for making any investigative determinations. Employing such a “taint team” is a well-established procedure within the department for screening potentially suspect evidence. These precautions were especially apt in the case of Giuliani, whose political passions and previous associations in Ukraine possibly affected his own critical faculties.

At an unrelated press conference in early February 2020, I made clear I was skeptical of information coming out of Ukraine. “We have to be very careful with respect to any information coming from the Ukraine,” I said. “There are a lot of agendas in the Ukraine, a lot of crosscurrents. And we can’t take anything we received from Ukraine at face value.” My usual critics on the Hill and in the media, as always getting the point exactly backward, screamed that I was giving Giuliani special access to the department. Wrong. It was an exercise in caution and an effort to protect other investigations that the DOJ had going on at the time.

While the effort to push the Ukrainians to investigate Biden was foolish, I do not believe it was criminal. Not all censurable conduct is criminal. The current tendency to conflate the foolish with the legally culpable causes more harm than good. Trying to apply the criminal law to diplomatic give-and-take is especially dangerous. A quid pro quo is inherent in almost all diplomacy, and Presidents frequently ask foreign countries to do things that are politically beneficial to the Presidents. A President might, for example, make a large, secret concession to a foreign country in order to expedite release of a hostage or win some other timely agreement the President expects will yield substantial political benefits prior to an election. The fact that the action sought from the foreign government will yield political benefit should not make the request criminal. It may have been in the national interest. Nor should it be criminal because the concession made by a President seems disproportionate or even reckless. Nor should it make a difference that the President was subjectively motivated by the expectation of political benefit.

The fact is that diplomatic transactions frequently involve “mixed motives.” The quo being sought will provide a political benefit and will likely satisfy a legitimate policy purpose of the government. In any particular case, the political motive may loom much larger than the governmental purpose, but as long as the latter is present, it would be hazardous to criminalize diplomacy by attempting to assess the balance of subjective motivations. Of course, if the quo being sought objectively has no governmental purpose at all and is purely a private benefit—say, a payment of cash for private use—then we are in the realm of bribery. But so long as the quo arguably advances a public policy objective, then policing the propriety of diplomatic transactions should be left to the political, not the criminal, realm.

To this extent, I viewed Vice President Biden’s pushing for Shokin’s termination as similar to President Trump’s pushing for an investigation of Biden’s role. The quo sought by Biden—the firing of Shokin—held a potential political benefit for Biden: avoiding the embarrassment of having his son’s company investigated for corruption. It also, ostensibly, had a legitimate public policy purpose: advancing the US anticorruption agenda. Similarly, Trump would benefit politically from an investigation into Shokin’s termination, but bringing transparency to that episode would also arguably advance America’s anticorruption agenda.

Biden supporters would say that, in his case, his policy purpose was overarching and supervened any possible political agenda. Trump supporters would say the same about his aims. My point is that the criminal justice process cannot legitimately be used to investigate politicians’ motivations when those politicians are asking for some rational and lawful policy concession. What Biden was demanding in Ukraine, quite apart from whether it would benefit his son, technically had a legitimate governmental purpose. And what Trump was demanding, quite apart from whether it would benefit his reelection, had the same. (309-312)

Regarding the side channel itself, Barr claims it was simply a taint team for information offered up by the public — by anyone — from Ukraine. That’s inconsistent with Brady’s still unexplained effort to go look for information on Hunter Biden and Burisma in the Burisma investigation that had just been shut down. It’s inconsistent with Brady’s concessions of all the things he didn’t consult — such as materials released as part of impeachment and contemporaneous reporting — before passing on tips.

And consider the euphemism Barr uses to describe Rudy’s motives. In addition to a specific concern about the “crosscurrents” in Ukraine, Barr cited Rudy’s “political passions and previous associations in Ukraine” to explain the need for such vetting.

There’s no mention of Russian spies.

There’s no mention of the fact that both the White House and DOJ recognized that Andrii Derkach was a Russian agent before Rudy boarded a plane to go solicit dirt from him.

There’s no mention of the fact that Barr set up a way for Rudy to share tips from known Russian agents.

And that’s one of several reasons why Barr’s complaint about the criticism he got — his claim that he was merely exercising caution — is bullshit. The side channel was one part of a larger scheme that had the effect of protecting Rudy (and therefore Trump) and framing Joe Biden. The scheme included:

Constraining the ongoing investigation into Lev Parnas and Igor Fruman in SDNY so it could not include Dmitry Firtash, much less Derkach
Moving the Derkach investigation to EDNY
Prohibiting anyone from opening an investigation into a Presidential candidate without his approval
Allowing Rudy to share information with Scott Brady
Permitting Brady to intervene in SDNY investigation (as well as that of Hunter Biden, Dmitry Firtash, and Ihor Kolomoyskyi)

These steps did more than vet Rudy’s tips. Taken together, they used the entire weight of DOJ to protect Rudy (and Trump) from any consequences for soliciting dirt from known Russian spies — a separate possible crime than merely sharing false information with the FBI.

Perhaps that’s why, having misrepresented the nature of the side channel, Barr opined that “I do not believe it was criminal” to solicit dirt on the Bidens from known Russian spies. Perhaps that’s why Barr followed that opinion with two paragraphs equating Joe Biden’s effort to rein in corruption in Ukraine with Rudy’s effort to solicit dirt from known Russian spies for Trump.

Barr’s explanation never made sense. The expectation was always that by firing Shokin, Burisma would get more scrutiny, not less. Barr’s explanation makes far less sense given that he launched this side channel just days after his DOJ shut down a four year investigation into Zlochevsky started while Biden was Vice President.

But his explanation does clarify something. The side channel assessment — based off material from Rudy, Chuck Grassley says — was a bribery assessment. It was started as a bribery assessment months before (if we can believe the indictment, which given the way it obfuscates other known details, we cannot) Smirnov first started pitching his false claims of bribery. It was started as a bribery assessment because that, in Barr’s mind, distinguished an inappropriate use of DOJ to investigate a politician’s motive and a fair use of DOJ’s authorities in an election year.

And in the year before an election last year, Barr doubled down on the bribery allegation allegedly fabricated by an informant with ties to Russian spies. In the process, Barr helped ensure that Joe Biden’s kid will face two trials and six felony charges as opposed to a settlement David Weiss had already offered.

An Attorney General dedicated to killing an investigation into Russian interference

That’s where Barr’s tenure as AG ended: setting up a side channel via which Joe Biden was framed by an informant with ties to Russian spies, which in turn led directly to felony charges against Biden’s kid.

That makes Barr’s single-minded focus on killing the Mueller investigation look quite different. Everything stemmed from that effort, according to Barr.

Russiagate dominated the first two years of President Trump’s term, looming over every aspect of the administration. I was on the outside as a private citizen during this time, and so my early reaction to the collusion claims was based on public reporting and my own informed speculation. Only in early 2019, when I joined the administration as Attorney General, did I begin to get a fuller picture of this manufactured scandal. From that time forward, it became increasingly clear to me that there were never any legitimate grounds for accusing Trump or his campaign of colluding with the Russians. This was not only my conclusion. Every investigation into the matter—including those of Special Counsel Robert Mueller and the Senate and House Intelligence Committees—also found no evidence of collusion.

I would soon make the difficult decision to go back into government in large part because I saw the way the President’s adversaries had enmeshed the Department of Justice in this phony scandal and were using it to hobble his administration. Once in office, it occupied much of my time for the first six months of my tenure. It was at the heart of my most controversial decisions. Even after dealing with the Mueller report, I still had to launch US Attorney John Durham’s investigation into the genesis of this bogus scandal. At the end of my first year in office, the President was impeached over a harebrained effort, involving Rudy Giuliani, to push back on the Russia collusion canard by digging up an alleged counter-scandal in Ukraine implicating the Clinton campaign or Vice President Biden and his son Hunter.

The fallout from Russiagate continued during my last year in office. My relationship with the President frayed as he became frustrated by my failure to bring charges against those who had ginned up Russiagate and the failure of Durham’s investigation to produce more rapid results. (180-181)

Of course Barr’s “Russiagate” claims are riddled with lies. We’re used to that.

The HPSCI investigation did ask every Trump-friendly witness if they had evidence of “collusion,” and they all said no (though it’s clear that Devin Nunes worked directly with the White House to craft at least one of these scripts). Senators split on partisan lines regarding whether the SSCI investigation showed “collusion.” The Mueller investigation did not make a conclusion about “collusion.” And not only did the report itself imply there was evidence of conspiracy — just not enough to charge — but a footnote Barr hid until right before the 2020 election revealed that an investigation into whether Trump’s rat-fucker joined a CFAA conspiracy with Russia continued after Mueller finished. Perhaps because of that, the declinations section on conspiracy actually didn’t make a conclusion, one way or another, about whether Trump’s people conspired with Russia on the hack-and-leak itself; that section addresses Section II and IV of the first volume, but not Section III, where the hack-and-leak was described.

Like I said, we’re used to those lies. I’m interested in this passage, which repeats Barr’s tired old lies about the Russian investigation, because of the relationship Barr sets up between those lies and what came before and after. Barr admits that he made a conclusion about the merit of “Russiagate” based on “public reporting” (presumably of the kind a right winger would see) and what Barr describes as his “own informed speculation.” Based on that conclusion, he decided to return to government to kill the investigation.

Barr built his justification to investigate Democrats from there.

Barr’s description of the Durham investigation — something he “had” to launch and something that he expected, in 2020 and presumably even in 2023 (his book came out just weeks after Durham gave up the ghost), would have “results” in the form of prosecutions — ties directly to his false claims (which may or may not be beliefs) about the Russian investigation. The Durham investigation had to produce results because Barr needed it to be true that the Russian investigation had no merit.

That imperative may explain Barr’s inconsistent claims. On page 180, describing that he had to open the Durham investigation, Barr made clear he believed an imagined Hillary effort to set up an investigation against Trump was criminal. On page 310, Barr explained that he didn’t believe an effort to push Ukraine [including known Russian assets, but Barr doesn’t mention that part] to investigate the Bidens was criminal. Rudy’s effort to solicit dirt from known Russian spies was not criminal, but Russian injection of disinformation into Hillary’s oppo research was.

It’s in that framework where Barr describes his personal involvement in Ukraine dirt — which the available record shows started no later than August 2019 and continued through at least October 2020, which an unreliable Parnas claims started far earlier, and which in paragraphs following Barr’s description of the side channel he improbably claims he first learned from a warning John Bolton gave him in early August. Rather than an impeachment focused on Trump, it focused on Rudy, and rather than an attempt to cheat in an election, it was an attempt to create a “counter-scandal.” In this passage, it is all portrayed as a ham-handed but, in Barr’s mind, justified effort to respond to the Russian investigation. In this passage, there’s no mention of Barr’s involvement in it at all. Only later would Barr refashion it (in the side channel passage above) as an effort to get transparency about Biden’s role in firing Shokin, transparency that multiple direct witnesses had already provided as part of the impeachment.

But in this passage, everything — the Durham investigation, the Ukraine response, and a bunch of things Barr conflates with the two, including the Brady side channel — arise out of Barr’s imperative to kill the investigation into Trump’s ties to Russia. That’s what justifies it all. Barr’s attempt to sustain false claims about the Russian investigation. Barr turned those false claims into license to retaliate.

That’s the before (the need to investigate Hillary as part of the imperative to kill the Russian investigation) and after (the side channel that protected Rudy from consequences for soliciting dirt from Russian spies and had the result of framing Joe Biden).

The AG doth protest too much, methinks

With those in mind, consider how Barr denials about the Durham investigation serve as a way to disclaim any involvement with Ukraine, where [3], “Conjuring up criminal conspiracies about political opponents had been honed into a fine art form.” This long passage, full of prevarications and word games, denies Trump asked him to open the kind of Biden investigation Barr opened up with the side channel.

As I was launching John Durham’s investigation in the spring of 2019, I was aware of the claims that the Ukrainians had interfered in the 2016 election on behalf of Clinton. Because these allegations were relevant to the origins of the Russia collusion narrative, they legitimately fell within the ambit of Durham’s inquiry. I put little stock in them and suggested to Durham that he defer any Ukraine-related work, and so these claims weren’t being pursued actively at that point. I was dubious of the idea that the Ukrainians, not the Russians, had been responsible for hacking into the DNC. [1] It had the hallmarks of Russian disinformation and seemed contrary to the evidence developed by the intelligence community and by Mueller’s investigation. Moreover, contrary to the President’s claims, CrowdStrike did not appear to be controlled by Ukrainians and seemed to be a reputable company. I doubted the firm had any reason to fabricate its analysis of the hack. In any event, I wanted Durham to hold back from engaging with Ukraine because I considered it [2] a land of smoke and mirrors, where disinformation was everywhere and reliable evidence extremely difficult to find. There were so many different actors with varying agendas—pro-Western politicians, pro-Russian politicians, countless oligarchs, each with his own aim—that it was hard to determine the provenance and motivations behind any information collected there. [3] Conjuring up criminal conspiracies about political opponents had been honed into a fine art form. I was especially concerned that Ukrainian actors could act as channels for Russian disinformation. I didn’t want Durham to get bogged down in that morass.

Consequently, in the spring and early summer of 2019, when John [Durham] and I discussed the international dimensions of his work, [4] we agreed to engage with the three countries we felt would be most helpful to the investigation: the United Kingdom, Australia, and Italy. I started by making contact with the ambassadors of these countries, and later had discussions with senior officials in each. I traveled to both Italy and the UK to explain Durham’s investigation and ask for any assistance or information they could provide. I alerted the President that we would be making these contacts and asked him to mention Durham’s investigation to the prime ministers of the three countries, stressing the importance of their help. In contrast, [5] I never talked with the Ukrainians or asked President Trump to talk to the Ukrainians. The President never asked me to talk to the Ukrainians. Nor had I talked with Rudy Giuliani about Ukraine. I was also not aware of anyone at the department requesting the Ukrainians to open up an investigation. As far as I was concerned, if Durham ever found a reason to look into Ukrainian activities, he would do the investigation, not leave it to the Ukrainians.

What really fueled the impeachment drive was the attempt to sic the Ukrainians on allegations about Vice President Biden. It was one thing to argue, as the President’s private defense attorneys did, that Ukrainians had interfered with the 2016 election. That would have had a bearing on collusion allegations against the President. It was something else to argue, as the President’s defense also did, that Joe Biden’s son Hunter had traded on his surname and engaged in un- ethical deal making in Ukraine. That looked less like defensive work and more like an offensive thrust against President Trump’s likely opponent in the 2020 election. Moreover, although the Department of Justice was investigating election interference, [6] DOJ was not investigating Joe Biden, and I didn’t think there was a legitimate basis to do so. The conflict-of-interest laws do not apply to the President or Vice President.

The key facts regarding Biden’s role in the ouster of the Ukrainian anticorruption prosecutor were largely a matter of public record. In 2014 the Vice President’s son Hunter, with virtually no relevant experience, had received a lucrative position on the board of Burisma at a time when the Vice President had the “lead” in the Obama administration’s push to get Ukraine to step up anticorruption efforts. In late 2015 Vice President Biden, by his own account, used the threat of withholding loan guarantees to pressure the Ukrainian government to fire Viktor Shokin, the lead Ukrainian anticorruption prosecutor. The public record is fairly clear that there was frustration in US and European policy circles with Shokin’s failure to pursue corruption cases aggressively, and his removal was widely favored by key US figures. It also appears he was not actively pursuing Burisma at the time of his dismissal, although he claimed later that he was planning to investigate the company. In my view, while the whole situation was [7] shameful and unethical, the facts did not provide a basis for criminally investigating Vice President Biden.

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

“Mr. President,” I said, “I don’t think you are being well served by Giuliani at this point. Mueller is over, and Russiagate is dying. Why is Giuliani thrashing about in Ukraine? It is going to blow up—”
“Yeah,” the President said, cutting me off. “I told him not to go over there. It was a trap.” President Trump gave the impression Giuliani had a degree of independence and was going to pull back. I did not press the point.

Unfortunately, the President’s careless statement to Zelensky erroneously implied some connection between me and Giuliani. Early in the conversation, the President asked Zelensky to “get to the bottom” of CrowdStrike and the server allegations, and said he was going to have the Attorney General talk to him about this. If the President had stopped there, I wouldn’t have been especially upset, because at least these particular allegations were within Durham’s purview, albeit on the back burner. However, later in the conversation, the President asked Zelensky to investigate Biden’s role in Shokin’s removal and said he should work with the Attorney General and Giuliani. When I read this, I hit the ceiling. When the transcript was released, I had the department put out a categorical statement:

[9] The President has not spoken with the Attorney General about having Ukraine investigate anything relating to former Vice President Biden or his son. The President has not asked the Attorney General to contact Ukraine—on this or any other matter. The Attorney General has not communicated with Ukraine—on this or any other subject. Nor has the Attorney General discussed this matter, or anything relating to Ukraine, with Rudy Giuliani.

Although this seemed to be largely accepted by journalists covering the department, some commentators still speculated that the President might have been pressing me to have the DOJ investigate Biden’s role.

This didn’t happen. The President had not asked that the Justice Department investigate the former Vice President, and it would not have made a difference if he had. [10] As far as I was concerned, the facts about this episode were out in the open and didn’t warrant a criminal investigation. Although Hunter Biden’s position was obviously a sordid instance of monetizing his father’s office, the Vice President did not violate the law because federal conflict-of-interest laws do not apply to Vice Presidents. Moreover, given the evidence that Biden was acting in line with US policy, and the absence of good evidence that Shokin was actively pursuing Burisma and that his removal would inhibit future action against the company, it would be impossible to prove that the Vice President acted with corrupt intent in pressing the Ukrainians to dismiss Shokin. And if there ever were a reason to pursue the matter, we would do it ourselves and certainly not pressure the Ukrainians to do it. (annotated numbering my own) (300 -304)

Three times, here, Barr claims he didn’t think the facts behind the Burisma allegations merited the kind of criminal investigation he would later set up.

[6] DOJ was not investigating Joe Biden, and I didn’t think there was a legitimate basis to do so.

the whole situation was [7] shameful and unethical, the facts did not provide a basis for criminally investigating Vice President Biden.

[10] As far as I was concerned, the facts about this episode were out in the open and didn’t warrant a criminal investigation.

He does so in a passage that claims to have avoided Ukrainian dirt because of the very same “smoke and mirrors” [2] Barr used to justify the side channel in January 2020. Those smoke and mirrors and Ukraine’s fine art form of conjuring up criminal conspiracies were the reason (Barr claims) he kept Durham out of Ukraine; but those very same smoke and mirrors are what Barr used to rationalize a side channel assessing dirt from known Russian spies that conjured up a criminal conspiracy against Joe Biden!

In other words, this disavowal of Ukranian involvement as part of the Durham investigation — which is transparently misleading in any case — serves as a proxy denial of the Ukrainian involvement we know Barr undertook elsewhere.

Barr’s discussion of the Durham investigation attempts to disclaim chasing Ukrainian dirt in three different ways.

First, he claims he didn’t know about any of Rudy’s efforts until … he doesn’t say precisely when. Barr claims at [8] that, “other than what I glimpsed in the media, I had no knowledge of the former mayor’s activities.” He situates the claim, vaguely, in “the spring of 2019,” far earlier than the warning he describes that Bolton gave him in early August pages later.

Parnas claims that Barr knew of their scheme from the start, from February, which would also be Barr first started getting briefings on the SDNY investigation, though Parnas didn’t say whether Barr learned of the scheme via SDNY briefings or separately, from Rudy’s effort to broker meetings with Barr. It might be true that the briefings Barr was getting on the Parnas investigation didn’t emphasize the tie to Rudy by whenever in spring Barr means. The first warrant against Rudy’s grifters had just a passing mention of Rudy; Kevin McCarthy, Rick Scott, Ron DeSantis, and Trump himself were all a more central focus of that warrant. The second, dated May 16, which focused directly on Marie Yovanovitch (and Pete Sessions’ role in her ouster), took out a reference to Rudy. SDNY obtained that warrant days after one possible date for Barr’s expressed concern to Trump that Rudy was “thrashing about in Ukraine.” Ken Vogel reported on May 9 that Rudy would head to Ukraine for election year dirt, only to report two days later that Rudy was canceling the trip after Adam Schiff and others made a stink; both reports postdated Trump’s comments to Hannity that Barr would investigate all this. That probably would be around the time when, according to Barr, he knew and warned Trump about “Giuliani thrashing about in Ukraine,” but claimed only to know that from press coverage.

By making the timing of this so vague, Barr makes it impossible to tell whether this conversation happened before or after the decision — made as part of, “inter‐department discussions well above” Joseph Ziegler’s second-order supervisor and originally attributed by Ziegler to Barr himself — to put the Hunter Biden investigation in Delaware, which made no sense if Hunter were the target but made perfect sense if Joe were. (Elsewhere in the book, Barr boasts that the investigation preceded his tenure, which it did, but the grand jury investigation did not, and — as noted — Ziegler originally said Barr personally made choices about the grand jury investigation.)

In any case, it would have happened long before the Perfect Phone call in July and meetings with Victoria Toensing — allegedly witnessed by Lev Parnas — regarding Dmitry Firtash. Barr is not denying getting involved in all this. He’s saying that he didn’t know what he was in for until sometime in later spring or summer 2019. By August, in any case, briefings on the Parnas investigation would have made SDNY’s increased focus on Rudy’s search for dirt on Hunter Biden clear. Barr knew what Rudy was up to well before DOJ chose to review only the transcript of Trump’s call for possible crimes, rather than the full whistleblower complaint that invoked Parnas and Fruman. Barr knew that if DOJ reviewed the entire whistleblower complaint, it would tie Trump’s call to an ongoing criminal investigation into unlawful influence peddling.

In short, even if Barr is telling the truth, even if he and Trump hadn’t spoken about Rudy’s efforts by the time Trump told Hannity they had, Barr had internal knowledge of both the SDNY investigation and Trump’s enthusiasm for Rudy’s efforts well before DOJ ensured the full whistleblower complaint would not be reviewed.

Having fiddled with the timing but not denied he was involved in Rudy’s efforts before the Perfect Phone Call, Barr then made much of what he claims was an affirmative choice not to pursue Ukrainian leads. He claims [1] that he didn’t send Durham to chase (what were, but which he didn’t identify as) Konstantin Kilimnik’s claims of Ukrainian tampering in the 2016 investigation because it felt like disinformation.

Remember: the foundational theory of the Durham investigation — what Durham imagined was a fully-blown “Clinton Plan” — was based on possible Russian disinformation, and from there Durham (and Barr) fabricated more. Durham’s pursuit of a conspiracy theory that Hillary made a plan to fabricate information implicating Trump in Russia’s attack was not only based on files that the intelligence community always warned might be Russian disinformation, but Durham — almost certainly with Barr’s help — fabricated an additional element to it: that Hillary would invent false evidence, rather than simply point to true evidence of Trump’s affinity for Russia.

That’s not the only disinformation Barr chased. He and Durham went on junkets around Europe chasing the ginned up conspiracy theories of George Papadopoulos, including at least one fostered by Joseph Mifsud’s attorney.

Which brings us to Barr’s claim at [4] that he and Durham, “agreed to engage with the three countries we felt would be most helpful to the investigation: the United Kingdom, Australia, and Italy,” Barr is referring, in the last case, to chasing the Coffee Boy’s Mifsud conspiracies, every bit as obvious disinformation as Kilimnik’s Ukraine conspiracies. And when Barr explains at [5] that “I never talked with the Ukrainians or asked President Trump to talk to the Ukrainians,” he’s limiting his comments to official contacts.

Barr is attempting to distinguish, “ask[ing Trump] to mention Durham’s investigation to the prime ministers of [the UK, Australia, and Italy], stressing the importance of their help,” from Trump’s mention of Barr’s efforts to Zelenskyy, in which he stressed the import of Ukraine’s help.

That’s why it’s so interesting what a big deal Barr makes of the statement at [9], what he describes as a categorical denial of Trump’s mention to Volodymyr Zelenskyy that he’d have Barr reach out.

Barr doesn’t include another part of the statement that DOJ put out (or a follow-up sent out the same day), which described, “certain Ukrainians … volunteer[ing] information to Mr. Durham.”

A Department of Justice team led by U.S. Attorney John Durham is separately exploring the extent to which a number of countries, including Ukraine, played a role in the counterintelligence investigation directed at the Trump campaign during the 2016 election,” DOJ spokeswoman Kerri Kupec said Wednesday. “While the Attorney General has yet to contact Ukraine in connection with this investigation, certain Ukrainians who are not members of the government have volunteered information to Mr. Durham, which he is evaluating.

Nor does he mention a statement he referred to over and over in the weeks that followed, one he sent on his personal cell phone.

Barr did have contacts with Ukrainians; he even discussed how Durham could get information confidentially from him.

They just were not members of government, Barr claimed.

To this day, we don’t know who those Ukrainians are (and all this would be in addition to discussions with Victoria Toensing about Dmitry Firtash, discussions that Parnas claims involved a quid pro quo for a Hunter Biden laptop).

But as I laid out here (and as I’ll return to), there’s good reason to suspect they include one or more of the Derkach associates Treasury sanctioned in January 2021.

Bill Barr told on himself the day after his book came out: He did investigate Joe Biden. Worse, he set up a system via which an informant responded to Andrii Derkach’s election interference by framing Biden.

Bill Barr walked into the AG job determined to kill an investigation into Russian interference. Before he walked out, he set up a system that protected election interference from Russian agents in Ukraine, election interference that resulted in Joe Biden being framed.

As I said above, a comparison of Barr’s claims with everything we’ve learned in the year since then shows that, at a minimum, Bill Barr was an easy mark for Russian disinformation.

Judge Maryellen Noreika Prepares for a Hunter Biden Trial … without Bates Stamps

May 9, 2024/44 Comments/in 2024 Presidential Election, Hunter Biden /by emptywheel

A series of decisions came down today in the Hunter Biden gun case that tee up the case for trial starting on June 3.

Those were:

A Third Circuit order denying his bid for an interlocutory appeal
A scheduling order hewing to the previous schedule to start trial on June 3
Judge Maryellen Noreika’s order denying Hunter’s motion to dismiss on Second Amendment grounds
Noreika’s order denying all Hunter’s requests for discovery
Two oral orders scheduling a status conference to deal with major issues on which the deadline has already passed:

ORAL ORDER: Defendant’s counsel has represented that he is unavailable to appear at the in-person May 10, 2024 status conference set in the Court’s Scheduling Order ( 112 ). Although the government objects to moving the conference, IT IS HEREBY ORDERED that the status conference is rescheduled for Tuesday May 14, 2024 at 11:00 am in Courtroom 4B. Defendant is not required to attend.

Virtually all of these should be regarded as expected to presumed. For example, while it wasn’t clear whether Noreika would rule on the 2A challenge before trial (Abbe Lowell had invited her not to), she relied on a recent 8th Circuit appeal to deny his motion, which made it far easier.

The Third Circuit appeal was unsurprising, and involved two Democratic appointees, including a judge — Cindy Chung — appointed by Hunter’s father. I think Hunter has a very good argument on a number of these points on appeal, but little basis to argue for interlocutory appeal.

Parts of the discovery order, however, are different. To be sure, many of these were expected. Having denied Hunter’s selective prosecution (while relying on evidence from Rudy Giuliani and falsely attributing it to Hunter’s memoir!!), it’s unsurprising that Noreika denied his discovery requests about Rudy’s role in the side channel that led to the Alexander Smirnov tip and therefore the collapse of the plea deal. It is nearly impossible to get discovery on grand jury proceedings, not even in a courthouse where a key staffer has it out for a defendant’s dad (which Abbe Lowell didn’t mention and may not know), so it’s unsurprising it failed here. Judges generally rely, as Noreika did, on prosecutors’ assurances they have complied with Brady, even in cases where it’s clear that AUSAs have been sheep-dipped so they don’t learn about Brady.

The degree to which David Weiss sat in a courtroom watching prosecutors make claims he knew to be false will all be ripe on appeal. But it’s not now.

Noreika’s order that prosecutors can sandbag Hunter with 404(b) material (describing otherwise incriminating details, which I expect will include an account from a sex worker in California about Hunter having a gun there, and probably other things from his memoir) a week before trial is churlish, but the kind of thing you might expect after you’ve threatened to mandamus a judge. It is totally within her purview, which is why it so risky to attempt to mandamus a judge before trial.

The one decision that surprises me is Noreika’s decision not to order prosecutors to tell Hunter where they’ve gotten evidence from the laptop.

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.

Given that Noreika has relied on laptop-derived evidence while ruling that Rudy didn’t have any influence in this case, this alarms me.

For reasons I don’t understand, after threatening to file a motion to suppress the laptop, Abbe Lowell has not done so. But the admissions Derek Hines made so far make it clear he has already relied on material that may violate US v. Riley not to mention material that will be ripe for other evidentiary challenges. And that came before the Robert Savage lawsuit made it clear this investigation has been tainted by fabricated evidence.

The decision not to move to suppress laptop evidence is Abbe Lowell’s. I can’t pretend to understand that choice.

Nevertheless, if prosecutors try to rely on laptop-based evidence, as they did extensively in defeating Hunter’s motion to dismiss, the decision to let prosecutors proceed without Bates stamps seems wildly ill-considered — all the more so given that they relied on evidence that arguably should have been treated as privileged and claimed sawdust was cocaine.

At the very least, it’ll dramatically raise the import of expert disclosure, which hasn’t even started, because someone from Hunter’s team and from the government team are going to have to argue at trial about whether every bit of evidence is reliable or is, instead, potentially the result of hacking. And it risks bogging down the trial. Thus far, the government hasn’t committed — at all!! — to have someone testify about why someone allegedly called John Paul Mac Issac to find out how to break into the machine before they had a warrant, about why they never took basic forensic steps with the laptop. If they intend to rely on laptop based evidence without Bates stamps, it will dramatically intensify any effort to admit this evidence.

Like I said, almost all of these decisions could be expected. They tee up a trial that will be enormously damaging to the President’s son.

But they also lay out decisions that I believe are incredibly ripe for appeal … after trial.

Update: Judge Mark Scarsi has denied David Weiss’ demand that Scarsi make Hunter adhere to the existing pretrial schedule. Hunter’s bid for interlocutory appeal is slightly less of a longshot in the 9th Circuit, though threatens to hold Hunter to existing deadlines.

To be clear, the Court has not vacated the pretrial schedule, and absent a request for relief, Mr. Biden ignores the Court’s orders at his own peril. If the Ninth Circuit dismisses the interlocutory appeal for lack of jurisdiction, the Court intends to proceed to trial without significant delay.

The Evolving Media Strategy of Lev Parnas

May 1, 2024/27 Comments/in 2020 Presidential Election, 2024 Presidential Election, emptywheel, Hunter Biden /by emptywheel

In advance of revisiting my work on the many ways Bill Barr intervened to protect — and participated in — Trump and Rudy Giuliani’s Ukraine capers, I want to first examine Lev Parnas’ recent media efforts, to include his House testimony and his recent book. After years of insinuating Barr had a role in Rudy’s capers, Parnas’ expanded story situates Barr more centrally in events, so I want to point out some gaps in his story and questions the fuller story raises.

Make of them what you will.

The limits of firsthand experience

First, note that Parnas’ book is not all based on firsthand experience. He has a co-author, Hells Angels chronicler Jerry Langton. That, plus sourcing choices about the book, make it difficult, at times, to understand where Parnas’ first-hand witness ends and where research begins.

One notable example is where Parnas and Langton tell an incomplete story about the Russian investigation. The purpose of the explanation is, at least in part, to explain why Parnas adopted Trump’s claims about the Russian investigation but no longer does; it is one of many attempts to disavow past beliefs.

Here’s one example of the uneven treatment that results.

Once the allegations of Russian interference became part of the national consciousness, Trump began to repeatedly and falsely claim that he had never done business in Russia, despite his many tweets to the contrary and the fact that his 2013 Miss Universe Pageant in Russia had been broadcast worldwide by NBC, Telemundo and Channel One, showing Trump sitting right beside Azerbaijani oligarch Aras Agalarov in the front row of the audience. Trump even told CBS News: “I have nothing to do with Russia. Nothing to do. I never met Putin. I have nothing to do with Russia whatsoever.” His lawyer, Michael Cohen, said that Trump called him right after that claim to check up on the status of Trump Tower Moscow.

Days later, the FBI would begin its own investigation into links between Russia and the Trump campaign.

Trump addressed the accusations again the same day at a news conference, saying: “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing.” Not only did that indicate that he was indeed looking for dirt on Hillary, but he was widely accused of “urging a foreign adversary to conduct cyberespionage” on another American, which is a serious crime.

The passage puts Trump’s Russia “are you listening” quip at the beginning of the Russian investigation, albeit with a focus on Michael Cohen’s comments, with no acknowledgment of whether it relies on Cohen’s public comments, court records, or on personal comments from Cohen, with whom Parnas has developed a personal relationship.

But the construction suggests a temporal tie between the presser and the investigation.

There’s no mention of George Papadopoulos here, and therefore of a Coffee Boy who ran his mouth to a stranger. It hides the genesis of the investigation. One effect of that is that Parnas absolves himself of addressing a lot of the bullshit about the origin of the investigation offered by Republicans, bullshit that he was party to. Parnas focuses more on Barr’s bullshit about the Russian investigation than that of his one-time allies.

This lack of clarity on sourcing leaves the provenance of more interesting descriptions about events to which Parnas was not a witness, but of which he might have inside information, uncertain. For example, is this an obscure public reference, or something Parnas learned from his right wing buddies?

Meanwhile, [Jeff] Sessions had been asking staffers for disparaging information against Comey and told them that he expected to see at least one anti-Comey article in major media every day.

Similarly, in critically describing John Solomon’s false claims about Yuriy Lutsenko, Parnas provides a claim that Lutsenko had grown close to Paul Manafort.

Solomon then portrays Lutsenko as an anti-corruption hero, as he had been instructed. Although along with letting Kilimnik sneak away, Lutsenko had been fired, dismissed, suspended, jailed (he was pardoned, officially for health reasons) and gotten chummy with Manafort.

This is a really important detail I had not known: but where does it come from? Parnas does not say. And it matters.

Everyone’s mob past

One thing Parnas does attribute to firsthand knowledge, however, is familiarity with the mob (in both senses of the word). Indeed, he offers himself up as a native of the same Brooklyn (and Queens) world that Michael Cohen, Felix Sater, Rudy Giuliani, and Donald Trump all arose from and unashamedly suggests growing up in such a place means you have mob ties.

Parnas lays all this out in matter-of-fact terms.

Parnas describes the mob ties of his ex-wife.

The girl that I was dating (who I would later marry and have a daughter, Zarina, with) had an uncle named Arkady Seifer. He was a very important man in our community. Seifer had been in prison four times and was connected to the Franchese, the Colombo and the Genovese families — among others. And everybody knew exactly how he made his money — the gas tax.

Seifer and I became quite close very quickly and I found myself referring to the old gangster as my uncle. After I gained his confidence and trust, Seifer let me in on his gas scam.

He describes how he came to call neighborhood boss Butch Montevecchi his uncle.

I translated what he said into English for a neighborhood boss, Ernest “Butch” Montevecchi. At the time, everybody knew Butch. He was strikingly handsome with dark hair and green eyes. He ran Brooklyn’s Sheepshead Bay, and Little Odessa, for the Italians. Later, he’d become so close to me and my family that he served as something of a surrogate father for me, and I started to call him my uncle.

He describes how, during the collapse of the Soviet Union, Parnas used his legally sound US citizenship as a means to ferry stuff into the collapsing Russian empire.

All of the clients were over-the-top excited that I could actually go back to whichever old Soviet republic they had come from. Not only could I import products and perhaps make them rich, but I could also get in touch with friends and relatives they hadn’t heard from in decades.

All of them had gifts for me to give to their loved ones overseas. I limited the haul to two suitcases, not only because I couldn’t carry any more, I didn’t want to arouse too much suspicion. They rapidly filled up with things like jeans, watches and other Western items that would be status symbols over there.

[snip]

Some of the people ultimately became my partners because we saw that it was obvious that our individual skills and contacts could benefit all of us. The people who had entrusted me to visit their contacts came from a variety of places, and an itinerary for me was quickly put together. First, I’d go to Moscow and St. Petersburg (officially Petrograd, but nobody ever called it that). Then it was on to Ukraine, where I’d stop at Odessa (now Odesa) and Kiev (now Kyiv). Finally, I would go to Kazakhstan and Uzbekistan. I was fluent in Russian, so I was confident that I’d be understood in all of those places.

Parnas described how this business venture put him in the service of a number of mobsters and oligarchs, including some he helped enter the US. Buy the book!

That story continues seamlessly to Parnas’ gradual insinuation in Trump world, in which the owner of Lique had a role.

Later on that week, I was talking with my friend, Alex Podolnyy, on his boat. It was moored behind his restaurant, Lique. It was nighttime and I was smoking a joint on deck. Before long, I was approached by two excited-looking, well-dressed men who were Alex’s friends. They introduced themselves as Ted and Robert and joined me on the boat. They seemed friendly and they knew Alex, so I didn’t mind sharing a joint with them.

As I’ve noted, SDNY’s affidavit for Parnas’ Instagram inexplicably excluded a picture of Parnas and Ivana Trump at Lique from the scope of their review.

And from there, Parnas got access through Brian Ballard. Over a long passage, he tells the story of how he pitched former head of Ukrainian’s Fiscal Service, Roman Nasirov (who awaits trial on corruption charges), to Brian Ballard and then got Nasirov and another foreigner into the Inauguration.

Later that day, I set up a meeting for Ballard and Nasirov. The Ukrainians were eager. When Ukrainian President Petro Poroshenko found out that Nasirov had an opening into Trump’s future administration with Ballard through me, he pressed Nasirov to make it happen. At the time, Ukraine had almost no relationship with the U.S. and even that was in danger of being erased as the Ukrainians were seen as being pro-Hillary. I explained the situation to Ballard. I told him that it wasn’t the president who was in favor of Hillary, just some loud members of his administration. Besides, Ukraine was a sovereign nation and they needed to have some relationship with the U.S. If they hire you, I told Ballard, they could get it done.

[snip]

The first person in the new power structure I sought out was prominent lobbyist Brian Ballard. Right after the win, I set up a meeting with Ballard — and his right-hand-man, Lukis. Although we talked on the phone, I preferred face-to-face meetings and would always see Ballard when he was in Florida.

Ballard was no dummy, he wanted to talk with me about what I knew and where I had contacts. Ballard wanted what I had, so it didn’t take much to make a deal. I would put Ballard in touch with the right people for 20 percent of any deals he made with them.

Although there was some thrill associated with making such high-level deals, I was really in it for the money. I had just had my big fallout with Hudson Holdings and had filed the lawsuit, so I needed to get paid. I knew just where to go.

Nasirov was a major player in the Ukrainian government and eager to talk with Ballard in order to improve Ukraine’s relationship with Washington. Because Ukraine’s support of Obama and Clinton had greatly offended the new crop of Republicans, he was almost desperate to get on Trump’s good side.

So I arranged to meet Nasirov at one of Igor’s Kyiv nightclubs, Buddha Bar. I flew there on December 1, 2016 to spend a week in Ukraine. When I arrived at Buddha Bar, Igor told me that the first floor was closed for a private party, so I’d have to meet Nasirov upstairs.

These descriptions make for great color. And I don’t doubt Parnas’ claims that everyone else he was dealing with was wowed if not working with the mob.

But the descriptions are notable for two other reasons. They address some — but not all — of details publicly released from his investigation.

But then the descriptions stop.

For example, Nasirov is mentioned just five more times in the book after this long introduction. Parnas explains how, just after Trump encouraged his efforts to dig up dirt with Rudy, Nasirov gave him the introduction to Viktor Shokin.

It was in that kind of weather that I landed in Kyiv to find Shokin. It wouldn’t take long for him to turn up. Everybody who was anybody in Kyiv knew me or at least knew of me. If I put the word out that I wanted to see Shokin, it would get to him.

It didn’t take long, I got a call from Nasirov. Of course he knew Shokin, he told me, they were old friends. He’d be more than happy to take me to see him. Shokin had a place just outside Kyiv.

Then there’s acknowledgment that Nasirov ran against Zelenskyy (and Poroshenko) in 2019. And that’s it. He’s the guy who hooked Parnas — and through him, Rudy — up with Shokin, but Parnas never returns to that relationship. That’s important because, as a letter that Parnas’ attorney failed to properly redact revealed, Nasirov was identified as a subject of the investigation into Parnas.

One person who is never mentioned is Alexander Levin who, like Nasirov, shows up in the warrants targeting Parnas, whose name was exposed in that same Joseph Bondy letter after Rudy phones were seized. As Savage Librarian first noted, a person of the same name and roughly the same vintage was charged in 2021 and will soon stand trial for money laundering in association with a series of safe deposit thefts across Europe; this motion in limine provides a glimpse into his background.

And the mobsters? Most of them are replaced in the story by Rudy Giuliani, as if never the twain shall meet.

Parnas never describes when his association with a bunch of sketchy types ended, if they did. That’s especially notable given Parnas’ description of the men he met at Otisville (the same prison at which Michael Cohen did time).

Once I was introduced into the camp’s general population, I was surprised at how many of the guys I already knew. There were friends of friends, old acquaintances and guys I did business with. There were even some people from the old neighborhood — Jews, Italians and Russians. In fact, they had been watching the news and knew I was coming, so they put together a welcome-to-prison gift package to make my life a little easier. They bought me the things that they had found essential behind bars — toothpaste, slippers, a comfortable sweat suit and other useful items they had bought from the commissary.

Suffice it to say Parnas never makes it clear if — and if so when — he broke from the mobbed up old neighborhood or whether they had a role in his work for Donald Trump’s lawyer.

Igor

Which brings us to Parnas’ treatment of his co-defendant Igor Fruman, who is not from Brooklyn, but instead from South Florida, where all this went down.

As Parnas describes it, they were mutual acquaintances through Jewish charities until Igor reached out because of Parnas’ access to Trump.

I knew Igor Fruman through common friends. Born in Belarus, his family emigrated to Detroit when the USSR was shedding even more Jews, Igor was six years older than me and had moved to South Florida, where the Russian, Ukrainian and Belorussian communities were tight. Still, he spent most of his time in Ukraine where he made his money.

I knew about Igor from various Jewish charities we were both involved in and mutual friends, but we weren’t really friends at the time. Igor became interested in me because of the pictures I was posting of myself with Trump on social media and because I was hosting events for Russians for Trump. Igor wanted to get deals done in the petroleum industry and thought I could help.

He owned two popular nightclubs in Kyiv, Mafia Rave and the more upscale Buddha Bar. Both places were very popular with well-heeled men from both the West and East. They mingled at Buddha Bar, got to know each other and made deals, often huge deals.

Parnas claims that Igor’s famous recordings of a few meetings with Trump — including a later one where Parnas offered up, in 2018, that Marie Yovanovitch was disloyal to Trump — were a surprise to him as well.

When I first started going to these events, I was all eyes and ears. All I wanted to do was learn. And to make contacts. My brain was recording everything so that I could sift through it all for what was valuable. I remember it all vividly, but I don’t have to — it was all recorded.

Although we weren’t officially allowed to take pictures or video, Igor surreptitiously caught it all on his phone without anyone realizing it. Even me.

All he had to do was keep the phone out of sight. Because of that, all his videos contain long shots of things like the backs of chairs, ceilings and water glasses. It was far more important to him to record what was said and who was there rather than it was to make it look any good. Back in Ukraine, he’d play the videos to important people in his bars. To the people there, Igor was just a nightclub owner. So, when he said that he was spending time with Donald Trump and Rudy Giuliani, nobody believed him. But with the videos, he could prove that he had access to the very top. It made for good business.

[snip]

So, I was very excited to head to dinner at the Trump International.

Again, Igor managed to catch it all for posterity despite the usual warnings about using cameras or recording devices.

Playing to the audience, I mention that a lot of European countries are back-stabbing us. I knew he’d love that. The crowd falls silent and seems to be very interested in what I have to say. I discreetly mumble something about the U.S. taking over, then tell Trump that the biggest problem I saw for Ukrainian-American relations is the ambassador.

As Parnas describes it, the tie to Nasirov went through Igor’s mobbed up Ukrainian clubs.

I knew someone who might want to become an investor. It was Ukrainian politician Roman Nasirov, who I knew from Igor’s nightclubs. He was then Chairman of the State Fiscal Service of Ukraine (something like Secretary of the Treasury), and was considered the third-most powerful man in the Ukrainian government.

The tie Yuriy Lutsenko, who just happened to show up in New York after they reached out to Shokin for dirt on the Bidens, went through Igor.

And that’s when a gift dropped right into our laps. At the end of January 2019, about a week or so after we spoke with Shokin, I learned from Igor that one of his friends — Gyunduz Mamedov, the Prosecutor General of Crimea — was in New York on personal business with the current top prosecutor in Ukraine, Yuriy Lutsenko, and Glib Zagoriy, a member of the Ukrainian parliament and a pharmaceutical tycoon.

Igor was also friends with Andrii Artemenko, who in turn set them up with Andrii Derkach and Andrii Telizhenko.

In September, I got a call from Andrii Artemenko, who was a friend of Igor’s. He told me that he had some guys with real, hard evidence that would prove all of our theories once and for all. Naturally, I was intrigued. But once he told me that the guys were Derkach and Telizhenko, I told him that we were cool, I’d pass. Not long after, Giuliani text me and asked: “Who’s this Artemenko?” He had, of course, known Artemenko, but had a habit of forgetting names, especially Eastern European ones.

I told him not to deal with Artemenko, he was peddling Russian disinformation. In fact, I gave him other names of guys who were doing the same thing. Of course, I later learned that he was enthusiastically dealing with Artemenko, as well as Derkach and Telizhenko.

Parnas tells two stories about how they got set up with Dmitry Firtash, one in Paris, seemingly arranged by Firtash because of his legal plight.

He probably first called Manafort, but he was already out of the picture. By the time Firtash needed him, he was already serving time. So Firtash had instead retained American lawyers Lanny Davis and Dan Webb.

On a trip to Paris, Rudy and I had a meeting with a Ukrainian we knew from one of the bars my business partner Igor Fruman owned in Kyiv. Igor considered him a close friend, but he hadn’t seen him in a long time. Unbeknownst to us, he was Firtash’s right-hand man.

He introduced us to Firtash. We wanted to talk to Firtash because we knew that he was connected to Mykola Zlochevsky, owner of Burisma Holdings, Ukraine’s biggest oil and gas company. He told us that he had heard things about Hunter Biden, Joe Biden’s son, bad things. Things we might be interested in. He recommended that we talk to Firtash about it. He wasn’t the first person we talked to, but we believed that he had a great deal of pull with the Ukrainian government. We believed that he could get us what we wanted — a Ukrainian investigation of the Bidens.

He describes the second one to have taken place in Madrid (this may be wrong; it may be the same meeting), where they went after Paris (though they met Kholodnytskyi in Paris first).

After our meeting with Kholodnytskyi, we happened to run into another friend of Igor’s at our hotel in Madrid. Everyone knew him as Little Dimitri because he worked for Firtash and we didn’t want to confuse the two. We spoke about why we were there and how important it was for us to get any compromising information on Joe Biden. He told us that the guy we wanted to talk to was Firtash and that he could introduce us. He didn’t need to explain to us who Firtash was.

Parnas was definitely the one trying to network his way through Trump’s world, but at least as Parnas depicts it, the key Ukrainian relationships — first Nasirov, then Shokin, then Lutsenko, then Firtash, and through Artemenko, Derkach and Telizhenko — all went through Igor. Parnas’ explanation of the foreign donations from Andrey Muraviev also blames Igor for intermixing those funds with other funds.

If SDNY learned that (there’s no hint they did, or if they did, that they believed Parnas), you’d think they would have focused more closely on Fruman than on Parnas.

Instead, the investigation treated Parnas as the brainchild of all the crime.

A continued unpersuasive explanation for his Marie Yovanovitch attacks

Against this backdrop, Parnas’ explanations for taking out Yovanovitch are wildly unpersuasive.

In his congressional testimony, Parnas claimed that he was “smeared” by a plot to get rid of Marie Yovanovitch.

When I was arrested, I was initially accused of being involved in a plot to remove Marie Yovanovitch, the U.S. Ambassador to Ukraine whom Trump had fired in April 2019. I was smeared by this false information, and also untrue claims that I was fleeing the country.

As my case continued, the Department of Justice decided they had no interest in Ukraine, sanitizing their marquee claims about Ambassador Yovanovich from my indictment. Instead, I was prosecuted for federal campaign finance and unrelated fraud charges.

In his book, Parnas would call what were primarily FARA charges “espionage” charges and vastly exaggerate the sentencing exposure either FARA or 18 USC 951 would bring.

By my read, this is a misstatement of what happened (one potentially necessitated by Parnas’ claim that SDNY was part of Bill Barr’s attempt to silence him and Igor or at least neutralize the threat the posed to Trump and Barr personally). By my read, the inclusion and then exclusion of the FARA charges had everything to do with the attempts to include Rudy in those charges and Barr’s tampering in that effort. There are probably a number of reasons why SDNY ultimately couldn’t pursue those charges: the corruption of Rudy’s phones, the provable role Trump had in this process, lasting damage Barr did, and Victoria Toensing’s attorney-client privilege with Dmitry Firtash.

But SDNY’s declination in no way debunks the claim that Parnas was involved in a plot to oust Yovanovitch. In his book he explicitly calls his attacks on Yovanovitch “slander.”

Nobody at the embassy knew what the game was. Yovanovitch was too professional to have said disrespectful things about the President, certainly not that he was going to be impeached. But I had been the source of a constant flow of slander against her. It was a big playground game. We’d go visit important people in Ukraine and tell them how bad Yovanovitch was. That would be followed by a visit by someone from the State Department who would tell the same people that we were lying. I would then double back and talk to the same people again, assuring them that Yovanovitch was anti-Trump and could be dangerous for Ukraine. Then the embassy staff would visit those same people again, telling them that we were nobodies who didn’t know what we were talking about. I had more time, so I usually got in the last word.

Parnas’ attempts to deny that there was a plot are important because, in Parnas’ telling, why he came to oppose Yovanovitch is inconsistent. As he describes telling Anderson Cooper in 2020, as he tried to avenge his arrest by cooperating in impeachment, he was reflecting the views of Republicans.

We discussed the Yovanovitch situation. He asked me if I had a problem with her. I told him I didn’t know her personally, but since the Trump people hated her so virulently, I came to the opinion that she had to go.

That’s, of course, nonsense. When Parnas targeted her in 2018, almost no Republicans would have heard of her.

He attributes the animus he expressed in 2018, which likely led Republicans to start examining Yovanovitch more closely, to the opinion of “Ukraine’s wealthy and those who planned to be,” people Parnas implicitly describes to be aiming to cozy up to “power brokers in Russia.”

She was unpopular with Ukraine’s wealthy and those who planned to be.

They were well aware that any serious investigations would easily expose them and their alignment, if not outright fealty, to the power brokers in Russia, not their own country (including more than a few elected politicians). With my many connections in various fields, there was a consensus about Yovanovitch — she had to go. And, when they found out I was American, they couldn’t wait to tell me about how bad Yovanovitch was for Ukraine, without giving too many specifics, of course.

She was unpopular with Ukraine’s wealthy and those who planned to be. They were well aware that any serious investigations would easily expose them and their alignment, if not outright fealty, to the power brokers in Russia, not their own country (including more than a few elected politicians). With my many connections in various fields, there was a consensus about Yovanovitch — she had to go. And, when they found out I was American, they couldn’t wait to tell me about how bad Yovanovitch was for Ukraine, without giving too many specifics, of course.

The rest of the book describes a progression: Shokin blamed Yovanovitch for denying him a US visa whence he could plot against the Bidens, which led Rudy to blame Yovanovitch, which led Trump and his failson and John Solomon and everyone else to pile on.

But the actual people behind that original animus are never named, possibly because tying that animus to the mobsters and oligarchs with whom Parnas networked would substantiate a plot, just a different plot, than the one SDNY laid out.

Relatedly, Parnas suggests that Pete Sessions was already working on replacing Yovanovitch when Parnas repeated this story to him and donated that money that, Parnas claims, Igor had mixed in with their other funds. Parnas was just the mule for a letter to Trump.

In short, the campaign against Yovanovitch is presented as always-already in progress, even though there’s no evidence that it started in the US before that Parnas comment in 2018.

A different approach to Dmitry Firtash’s equities

This post is meant to set up one on Barr. We get there via Dmitry Firtash.

Parnas manages to focus more closely on Bill Barr’s role in all of this by expanding, from earlier instances, on how he describes the Firtash relationship.

When he wrote James Comer last year, he probed for a subpoena that would provide a way to breach any privilege claim.

Thereafter, as I became an interpreter between Firtash’s new legal team and Firtash, most of the conversations in which I participated were potentially privileged; however, I believe this information may be made available to the House Oversight Committee through a Congressional subpoena.

He didn’t get that subpoena.

When invited to testify without subpoena, Parnas made no mention of Firtash in his prepared congressional testimony. But in the hearing, Ro Khanna cued Parnas to describe his second-hand understanding that Barr was willing to trade campaign help for lenience from DOJ.

Ro Khanna: Did Bill Barr know that you were involved in getting this dirt?

Parnas: Absolutely. Bill, Bill Barr was informed of our investigation from the day he took office.

Khanna: Did you ever have a conversation with Bill Barr being lenient towards Dmitry, in Bill Barr’s role as Attorney General?

Parnas: I personally did not but I was witness to Victoria Toensing and Joe DiGenova, having a conversation with Bill Barr about Dmitry Firtash.

Khanna: What did they say to Bill Barr?

Parnas: Basically, they were telling him that the charges were false, and that he needs to drop the charges and, basically, end the case.

Khanna: And why did they tell him to drop the charges on this Russian [sic] oligarch?

Parnas: Because Dmitry Firtash was going to help us getting dirt on the Bidens, or whatever else the Trump campaign needed.

Khanna: So my understanding is you have the Trump campaign telling you to talk to a Russian [sic] oligarch to get dirt, on the President of the United States for political reasons, and then someone from the Trump campaign is talking to the Attorney General to drop the charges because this foreign national is helping get dirt on a political candidate?

Parnas: Absolutely.

Khanna: Did Bill Barr indicate any willingness to drop the charges?

Parnas: After the meeting that Victoria Toensing and Joe DiGenova had with DOJ, they came back and informed me that “we’re going to Vienna” because, to tell Dmitry Firtash everything is going to be okay.

While Parnas’ focus on Firtash at the hearing had the appearance of accident, Firtash is a central focus of Parnas’ book. The first pages of Parnas’ book describe meeting — alone, apparently — with Firtash, in what would be the penultimate visit to finalize a quid pro quo.

As my car approached its destination, I watched as a black — no doubt armored — Mercedes SUV with opaque black windows blocked the one-way street behind me. Closer to the massive iron gates in front of the property, another big black SUV blocked the road ahead.

It didn’t unsettle me at all, I’d been through the same routine on the previous trips I had made to this house and others like it. I also knew that the guys protecting Dmytro Firtash seriously outgunned anyone who might want to hurt him. And he was on our side.

As we turned down the only open lane toward the main building, we drove past a legion of security guards in black with dark sunglasses and AK-47s. Nothing out of the ordinary.

The chapter then maps out how, at a hush hush meeting at John Dowd’s in Chatham, MA, as news of the Perfect Phone Call started to break, Trump’s team promised to protect Parnas.

A black SUV with security took me to Chatham, Massachusetts, on the “elbow” of Cape Cod. Firtash paid for all of it. There was a conference call set up by Trump’s legal team at Dowd’s beach house. Dowd told me that the reason we met on Cape Cod was to keep the media away from me.

[snip]

In Dowd’s home office, he set up a conference call with Giuliani, Jay Sekulow (another of Trump’s attorneys), Toensing and diGenova. There might have been other lawyers, but I didn’t hear any. Dowd laid out the plan, and it was simple: stonewall. He instructed us all not to say anything to Congress and not to worry about subpoenas because we’d only get letters requesting our appearance, which we could ignore. Trump, he said, would tell them to go fuck themselves and everybody else was to follow suit. [my emphasis]

So, even as Congress was investigating, Parnas continued to pursue the quid pro quo with Firtash. Parnas went from this meeting back to DC to tie up loose ends for the big Fox News reveal.

On October 6 (two days before the beginning of Yom Kippur), I flew to Washington to discuss the trip to Vienna with Giuliani and Toensing.

Giuliani told me that he wanted to meet Shokin and that it might also be a great idea to bring Fox News personality and ardent Trump supporter Sean Hannity to interview him.

That was a key part of the plan. Team Trump had not been very successful at getting our message into what Trump called “fake news” and the “lame stream media,” so we depended on Fox News and like-minded outlets for any publicity. Not only would millions of Americans see the interview, but it being on Fox News would lend us an air of credibility among many people.

Just before we left for Vienna, I received a phone call from Firtash warning me that Shokin had become anxious about the interview, and was threatening to back out.

I called Shokin. He answered, but he was tense, even panicky. He told me that he was sure “they” were going to kill him. He was absolutely convinced that he would be poisoned, just like Viktor Yushchenko, who had angered Putin while running for the Ukrainian presidency. There was no way, he said, that he would get on a plane no matter what.

Firtash told me not to worry. He’d see to it personally that Shokin was flown to Vienna safely and would be present for a live interview with Fox’s Hannity.

Part of the deal was that we’d also get Shokin’s sealed testimony to the Viennese court and the hard drive from the laptop Hunter Biden used when he was working in Ukraine. It was supposed to have come from Alexander Gorbunenko, who was CFO of Burisma when Hunter worked there. If there was any evidence of him doing anything illegal in Ukraine, we were sure we’d find it there.

This is the Lev Parnas post, not the Bill Barr post. We can discuss the potential significance of this — the inconsistency between John Paul Mac Isaac’s timeline and the FBI’s, Will Levi writing Barr that a laptop was on its way to him immediately after IRS got a warrant for the laptop ascribed to Hunter, the reported closure of the Mykola Zlochevsky investigation and the use of it to elicit Alexander Smirnov’s false bribery allegation, the limitations imposed on SDNY’s ongoing investigation into Rudy’s influence campaign, the Brady side channel, including Brady’s inquiries into investigations in Chicago, where the Firtash investigation was — in the Bill Barr post.

I’ve got cautions about Parnas’ credibility, and SDNY repeatedly said he was lying about all this (and Parnas sustains some of what SDNY surely treated as lies — for example about Yovanovitch — in this book). But Barr’s a liar too, he affirmatively prevented SDNY from learning some of this, and his own actions are consistent with what Parnas claims.

It’s about motive.

Parnas’ motive has always been transparent. For all his claims to be cured of membership in the Trump cult, that would never have happened if Rudy and Trump and John Dowd hadn’t reneged on their promise to protect him.

I was led into a room where Dowd was sitting behind a table and Downing was standing beside him. Immediately, I started asking questions. I wanted to know why I was still behind bars while Igor was free. I wanted to know what Trump was going to do for me.

Suddenly, Dowd slammed his fist down on the table and shouted at me: “Who do you think you fucking are? Trump is President and he will do whatever he damn well wants to do!”

But in a book that engages in a lot of casual mob-talk, I want to know about the evolving treatment of Firtash.

Firtash had a real attorney-client relationship with Victoria Toensing, however corrupt (Lanny Davis is no better). And for years, Parnas respected that (in part, presumably, because it kept SDNY away from this material, though the statute of limitations on these activities have not quite expired).

I’m all in favor of hearing this story. But what does Firtash feel about it?

Joseph Ziegler Allegedly Chased Doctored Laptop Evidence

April 30, 2024/51 Comments/in 2020 Presidential Election, 2024 Presidential Election, Hunter Biden /by emptywheel

Following the news that Fox News has complied with one of Hunter Biden’s demands by taking down a six-part fictionalized series on Joe Biden’s son, Sarah Fitzpatrick, one of the journalists who first reported on Hunter Biden’s threats to sue Fox news yesterday, has a new scoop out.

A retired Secret Service agent implicated in the most clearcut laptop related fabrication, Robert Savage, is suing the NYPost, reporters who claimed that he had helped run cover-ups for Hunter Biden in LA, and the US affiliate of the Daily Mail. (NYP, Associated Newspapers)

A former Secret Service agent sued two news organizations for defamation Tuesday and accused them of publishing stories based on fabricated text messages that he says falsely linked him to Hunter Biden.

Robert Savage, a 25-year veteran of the U.S. Secret Service and the Special Agent in Charge of the agency’s Los Angeles Field Office from 2015-2017, filed the lawsuits in New York against the New York Post and two of its reporters, and the owner and publisher of the Daily Mail.

Savage alleged that the reporters and publications recklessly disregarded information that the text messages, which came from a laptop that purportedly belonged to Hunter Biden, were fabricated. Despite that, they published articles and tweets in 2021 and 2023 that suggested Savage communicated with and met and met with Biden in Los Angeles.

“Rob has not and has never met Hunter Biden, does not know Hunter Biden, has no connection with Hunter Biden, and has never corresponded with Hunter Biden,” Savage’s attorney, Mark Goidell, told NBC News.

The lawsuit itself is not the big part of the story: It’s that someone presenting as Joseph Ziegler questioned Savage about the incident.

In March 2022, Savage was visited at his home by an FBI agent and an IRS agent who said they wanted to ask him questions about his association with Hunter Biden and the laptop. Savage was also served with a grand jury subpoena from the U.S. Attorneys Office in Delaware, which later charged him with tax and gun charges.

NBC News obtained security footage of the interaction, copies of the business cards left by the agents and a copy of the subpoena.

The IRS agent identified himself as Joseph Ziegler, who testified as a whistleblower to a House committee investigating Hunter Biden in 2023. Ziegler alleged that the Department of Justice prosecutors limited his investigation of Hunter Biden, a charge that DOJ officiales denied. Ziegler’s attorney declined to comment.

Goidell said that the law enforcement agencies appear to have ended their investigations of the alleged text exchanges between Savage and Biden.

It has long been known that there was fabricated data on at least some versions of the hard drives created from the laptop. But it has been unclear whether those fabrications existed on the copy shared with the FBI.

If Joseph Ziegler really did visit Savage, it means one of two things: Either there is fabricated data on the FBI laptop and investigators have known that since 2022, or that Ziegler allowed himself to be tainted by the publicly released claims about the laptop, complete with fabricated data.

Remember, in August last year, when David Weiss’ purportedly sheep-dipped prosecutors told Abbe Lowell they were going to pursue felony charges against Hunter Biden, they confidently bragged that they had backstop for all the data on the laptop. They said that four months before they first obtained a warrant to access the laptop for evidence relating to gun crimes.

Their confidence turned out to be misplaced; in filings before Judge Noreika that persuaded her they had plenty of evidence against Hunter Biden, they relied on evidence that appears only to be available from the laptop.

And Savage’s lawsuit strongly suggests that prosecutors are sitting on evidence that they know the laptop is unreliable.

Update: This post has been updated, among other things, with links to the lawsuits.

Fox News and the Joint Tortfeasors

April 29, 2024/70 Comments/in 2020 Presidential Election, 2024 Presidential Election, Hunter Biden /by emptywheel

As CNN and NBC have reported, Hunter Biden is threatening to sue Fox News.

The threatened complaints do not amount to a broad defamation claim. Rather, the letter sent by Geragos attorney Tina Glandian makes the following complaint:

Both before and after the Alexander Smirnov lawsuit, Fox News claimed that he and his father had accepted a bribe, recently doubling down on Smirnov’s claim.
For a fictionalized series called The Trial of Hunter Biden, Fox commercially exploited Hunter’s image.
For the same series, Fox News used revenge porn.
For the same series, Fox News violated Hunter’s copyright.

I’ve already seen lots of opinion about how wise or unwise this is, most ignoring the narrowness of the defamation claim. The entire claim about the fictionalized series is that Fox presented it as fiction, and therefore cannot be said to be reporting on the news.

Still, I’m agnostic, at this point, about the wisdom of this.

I’m interested, however, in another detail. It’s not just Fox News that Geragos is threatening to sue. They’re threatening to sue other tortfeasors — the people with whom Fox News worked to harm Hunter Biden. Here’s what the protective demand looks like.

As we anticipate that litigation against FOX, as well as its joint tortfeasors is imminent, we hereby formally demand that FOX and its predecessors, successors, parents, subsidiaries, divisions, affiliates, employees, hosts, anchors, commentators, columnists, reporters, journalists, officers, directors, partners, attorneys, accountants, and agents, including but not limited to Jesse Watters, Sean Hannity, Jeanine Pirro, Dana Perino, Miranda Devine, Laura Ingraham, and Maria Bartiromo, preserve all documents potentially relevant to the allegations in this letter including any documents which relate to the allegations in this letter in the broadest sense dating back to at least January 1, 2019. To be clear, such documents include but are not limited to all communications related to (i) strategy meetings at BLT Steak in Washington, D.C. and/or “BLT Team” meetings or communications; (ii) Skype interviews between Ukrainian officials and a Congressman Devin Nunes senior staff member; (iii) the meeting in a FOX News conference room in New York City on October 8, 2019 between and among Lev Parnas, Rudy Giuliani, John Solomon, Joseph diGenova, and/or Victoria Toensing; (iv) the procurement, use, and publication of images of Mr. Biden including the use of intimate images purporting to depict him; (v) the “Salacious Pics Package” and/or “Salacious Pics Package_EDITED” folder allegedly on the laptop obtained by Mr. Mac Isaac; (vi) the planned interview of former Ukrainian prosecutor Viktor Shokin by Sean Hannity in Vienna, Austria in or around late October 2023; and (vii) Fox Nation’s six-part “mock trial” entitled “The Trial of Hunter Biden; (viii) the indictment returned against Alexander Smirnov on or about February 14, 2024.

This preservation demand includes internal communications regarding the foregoing subjects between and among FOX employees, hosts, anchors, commentators, columnists, reporters, journalists, officers, directors, partners, attorneys, accountants, and agents, as well as FOX’s communications with third parties including but not limited to John Paul Mac Isaac, Colonel Steve Mac Isaac, Rudy Giuliani, Robert Costello, Guo Wengui (and/or Ho Wan Kowk and/or Miles Guo), GTV, Vish Burra, Jack Maxey, Vincent Kaufman, John Solomon, Steve Bannon, Tim Murtaugh, and Igor Fruman, Lev Parnas, Dmitry Firtash, then-Congressman Devin Nunes, Senator Ron Johnson, Joseph diGenova, Victoria Toensing, Derek J. Harvey, then U.S. Attorney General William Barr, and other U.S. Department of Justice officials. [my emphasis]

There are a lot of other tortfeasors included in this list.

This discovery overlaps with what Hunter has already gotten from John Paul Mac Isaac (to say nothing if Robert Robinson allows Hunter’s countersuit to go forward), as well as the lawsuit of Rudy and Robert Costello.

But it fills in some of the most important bits — bits that have little to do with the two alleged complaints, per se, but bits that would be relevant in any dispute about whether Fox knew its claims of bribery were not just false, but a deliberate fabrication.

This discovery demand also asks for communications with a number of people, like Devin Nunes and Derek Harvey, who would be untouchable via direct suit. And if Hunter managed to get discovery at all — a very big if — it might threaten to expose ties between Sean Hannity, Dmitry Firtash, and Bill Barr, among others.

Update: The six-part fictional series is in the process of being deleted (click through for links).

Fox News appears to be taking Hunter Biden’s lawsuit threat quite seriously.

The network has quietly pulled down its six-part “mock trial” series from its digital streaming service Fox Nation after lawyers for the presidential scion warned the network of their intention to sue for defamation.

Besides quietly taking down The Trial of Hunter Biden from its streamer, the network also deleted a promotional video promising Fox News viewers an “inside look” at the “mock trial,” which was presided over by former reality-TV star Judge Joe Brown.

This would dramatically limit the surface area that Hunter would have for lawsuit as, without the fictional narrative, only the post-Smirnov claims of bribery would be actionable.

Kaitlan Collins Ignores Bill Barr’s Role in the Effort that Framed Joe Biden

April 28, 2024/75 Comments/in 2020 Presidential Election, 2024 Presidential Election, emptywheel, Hunter Biden /by emptywheel

Kaitlan Collins did an interview with Bill Barr the other day, offering him a platform to make weakly-rebutted claims that Democrats were worse than a man who attempted to overthrow democracy.

The interview provided a remarkable opportunity to question Barr about his role in an important scandal that has become public since his last interview with Collins: the Scott Brady side channel to ingest dirt on Hunter Biden, a side channel that FBI informant Alexander Smirnov used to frame Joe Biden with false allegations of bribery. Not only didn’t Collins even ask Barr about his role in setting up that opportunity, but she allowed Barr to lie to her face, falsely claiming that Trump never demanded that Barr intervene in particular investigations.

Days after one such instance documented in Barr’s memoir, when Trump called Barr to yell about Hunter Biden, DOJ ordered prosecutors investigating Joe Biden’s son to pursue Smirnov’s allegations.

Since Barr’s last appearance, we’ve learned more about the Brady side channel

Not long before Bill Barr’s last appearance on Kaitlan Collins’ show last August, he made a little noticed intervention in the House inquiry attempting to substantiate something against Joe Biden.

On June 7, 2023 — the same day David Weiss and Hunter Biden’s lawyers settled on language that should have resolved all criminal investigations of him — in an on-the-record interview with Margot Cleveland, Barr accused Jamie Raskin of lying about what members of Congress had been told about an FD-1023 informant report, now known to be a fabricated report from Alexander Smirnov.

Barr told Cleveland that the investigation into the FD-1023 — an investigation that the Smirnov indictment identifies as a bribery assessment — wasn’t shut down in August 2020 but instead was forwarded to David Weiss to investigate further.

“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.”

An anonymous source for the same article (often, reporters will give a source anonymity in an article where they are otherwise quoted) had knowledge that the lead to Smirnov didn’t come directly from Rudy Giuliani.

Not so, according to an individual familiar with the investigation who told The Federalist that the CHS and the FD-1023 summary of his statement were both “unrelated to Rudy Giuliani” and “not derived” from any information Giuliani provided.

Barr’s comments led House Republicans to pursue the FD-1023 even more aggressively. They pointed to it as yet another (subsequently debunked) claim that David Weiss had blown the investigation into Hunter Biden. This was the smoking gun that was going to take down Joe Biden and his kid!

That effort appears to have contributed to Weiss’ decision to renege on Hunter Biden’s plea deal.

On July 10 — just weeks after David Weiss’ office assured Chris Clark, on June 19, that there was no ongoing investigation into Joe Biden’s kid — Weiss told Lindsey Graham that there was an ongoing investigation into the FD-1023 he had been ordered to investigate 32 months earlier.

Then, on July 23, just days before Hunter Biden’s plea hearing was scheduled, Chuck Grassley released a leaked copy of the FD-1023 itself.

Three days later, in Hunter Biden’s plea hearing, when Maryellen Noreika asked Leo Wise about the scope of the immunity offered to Hunter Biden, he stated there was an ongoing investigation, one in which FARA charges might still be on the table; that claim directly conflicted with the assurances offered to Hunter’s attorney on June 19.

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

MR. WISE: Yes.

THE COURT: I’m trying to figure out if there is a meeting of the minds here and I’m not sure that this provision isn’t part of the Plea Agreement and so that’s why I’m asking.

MR. CLARK: Your Honor, the Plea Agreement —

THE COURT: I need you to answer my question if you can. Is there a meeting of the minds on that one?

MR. CLARK: As stated by the government just now, I don’t agree with what the government said.

THE COURT: So I mean, these are contracts. To be enforceable, there has to be a meeting of the minds. So what do we do now?

MR. WISE: Then there is no deal.

As Judge Noreika described in an opinion rejecting Hunter Biden’s claim that David Weiss had reneged on this deal, prosecutors “appeared to revoke the deal” at that moment. In the wake of the release of the FD-1023 and Barr’s claims that Weiss had been ordered to pursue that lead, David Weiss “revoked” the deal in order to chase allegations that might substantiate a FARA charge. In spite of the fact that Judge Noreika described that Wise appeared to revoke a signed deal, in spite of the fact that she had an uncontested claim before her from Chris Clark that Weiss’ office had told him on June 19 there was no ongoing investigation, Noreika did not conclude that Weiss had reneged on the terms of a deal.

On August 29, investigators working with newly-minted Special Counsel David Weiss interviewed Smirnov’s handler. They learned that Smirnov’s travel records were entirely inconsistent with the claims Smirnov had made. They should also have learned that a photo Smirnov shared with his handler in May 2020 was a long-debunked hoax first spread by Tucker Carlson in the same time period that Rudy Giuliani launched his 2020 disinformation campaign against Joe Biden.

Nevertheless, on August 29, the same day they should have realized they were chasing disinformation, Weiss’ prosecutors told Abbe Lowell they were chasing felonies against Joe Biden’s kid.

As they were doing so, more evidence about the side channel became public. On September 27, Gary Shapley released an email corroborating one thing Barr told Cleveland: DOJ had sent that lead over to David Weiss for further investigation. Pittsburgh AUSAs briefed Weiss’ team on October 23, 2020, just days before the election.

Two days later, on September 29, Weiss’ investigators interviewed Smirnov, only to find him beginning to change parts of his story while claiming to know of another disinformation campaign, involving high level Russian spies, targeting Joe Biden in 2024. At this point, it wasn’t just a hoax. It might be a Russian-backed hoax.

It should have been clear years earlier, but by that point, it was clear that Smirnov, someone who belatedly informed his FBI handler about ties with Russian spies, had exploited the Brady side channel set up to ingest dirt Rudy Giuliani solicited overseas, including from known Russian spies, to frame Joe Biden.

On October 23, Brady provided far more details about that side channel in testimony to Congress, testimony that was available almost immediately (but which few mainstream outlets chose to read).

Barr came up, by name, 33 times, such as when Brady described updating the Attorney General on his efforts, in person, twice. Or when describing not what Brady’s actual instructions from Barr were, but what Barr had publicly said his instructions were (the logging of the assessment as a bribery assessment discredits Brady’s claims about his task). Or when Brady got caught falsely claiming the effort wasn’t secret until Lindsey Graham blew the secret after Trump was acquitted for demanding such bribery allegations from Ukraine. Or when questioned about whether Barr was included among the people who “Would feel more comfortable if [Brady] participated,” in an interview of Rudy personally, “so we get a sense of what’s coming out of it.” Or when trying to explain why he reached out to the FBI’s Legat in Ukraine to ask for help from Ukraine’s Prosecutor General. Or when Brady offered several of his never-plausible explanations of something that remains among the most important questions about this scheme: how his team came to focus on a single line in an informant report about Mykola Zlochevsky and, from that, decide they had to interview Smirnov directly.

Q According to public statements by Attorney General Barr, your office in vetting the information provided by the CHS for the FD-1023, you went back and developed more information that apparently had been overlooked by the FBI.

Is that an accurate statement?

A I can’t say “overlooked.” I don’t know that I agree with that characterization because I don’t know what — again, because this was referenced in a previous CHS report, I don’t know what the focus of that investigation was. So it might have been ancillary information that wasn’t directly related to what they were looking at in 2017. But it had not been developed. It’s fair to say that it had not been looked into or developed any further.

[snip]

Chairman Jordan. Okay. January 3rd, 2020. And then what I am understanding is, right, throughout the winter and spring, you’re asking the FBI for information they have regarding Ukraine and Hunter Biden, you’re requesting that you get information they may have?

Mr. Brady. We’re trying to identify investigative leads, and from the information we had received from the public, including information about Hunter Biden and Burisma, and then asking the FBI — and we were also tasked with coordinating this is public from Attorney General, Attorney General Barr, how to coordinate also with intelligence services. And so we were interfacing with them relating to that tasking. It wasn’t everything that they had because certainly Delaware with the grand jury investigation would have had a lot of information relating since it began in 2019.

Bill Barr was, according to the guy he tasked with it, Scott Brady, all over this side channel. Even Bill Barr claims he knew the circumstances of how Brady sought out an informant used in an investigation that had only weeks earlier been shut down by DOJ to shift the focus, away from Zlochevsky’s suspected bribes, and onto the man he might have bribed, Joe Biden.

Bill Barr set up a side channel, during an impeachment of Donald Trump for demanding that Ukraine investigate the Bidens for corruption, that tried to find basis to investigate the Bidens for corruption.

Nothing about Brady’s pursuit of Alexander Smirnov — digging to find a one-line mention of Joe Biden’s kid and from that demanding to interview the informant — matches the public explanation of the side channel: accepting and vetting information from the public, first and foremost from Trump’s personal lawyer. These are all things that Kaitlan Collins had a unique opportunity to query Barr on. Bill Barr claims to know that the Smirnov tip didn’t come from Rudy. How does he know that? Where did it come from? How did Brady and Barr come to decide to interview the FBI informant who happened to be floating false claims of bribery based on already debunked hoaxes? Were Brady and Barr witting participants in the effort to frame Joe Biden, one made in 2020 and renewed for the 2024 campaign, or did they just get used? If they got used, do they owe Biden an apology?

That would have been a laudable use of CNN’s exclusive interview with the former Attorney General.

Bill Barr lies to Kaitlan Collins’ face

Collins did none of that. Instead, among the other lies Barr told (a few of which CNN’s panel debunked after Barr left), she let Barr tell this lie — that Trump never pressured him directly, but instead only pressured Barr by tweet — uncorrected.

Did Trump expect his A.G. to go easy on his friends?

BARR: I don’t know. I don’t know what he expected.

COLLINS: What was your experience?

BARR: My experience was by the time I came in, he did not — he did not push me to do one thing or another, on these criminal cases. Now, he tweeted, and made his public views on things known. But he never talked to me about them directly.

COLLINS: So, he did not have you in his pocket, you would argue?

BARR: It’s not a question of arguing. I did what I thought was right.

COLLINS: And you never felt any direct pressure from him, on what investigations the DOJ was carrying out.

BARR: No. He did not directly pressure me. Yes, as I say, he was out there tweeting and doing things that were embarrassing, and made it hard for me to run the department.

COLLINS: That sounds like pressure. [my emphasis]

Barr’s own memoir describes Trump pressuring him directly, just days before Richard Donoghue, acting as PADAG, ordered David Weiss’ team to accept a briefing from Scott Brady.

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.

Barr’s memoir is largely transparent CYA, especially for his efforts to protect Rudy’s information operations (descriptions of which in the memoir do not match public records), so this may simply be an attempt to spin damning notes Levi took of the call. But it undoubtedly counts as direct pressure from Trump regarding the Hunter Biden investigation.

Plus, Trump’s pressure on DOJ to investigate Hunter Biden was not a one-off. According to contemporaneous notes from Donoghue, Trump harangued Jeffrey Rosen and Donoghue about the Hunter investigation in the December 27, 2020 call otherwise focused on demanding DOJ support for his false election claims, the call where Trump first floated replacing him with Jeffrey Clark.

Rather than hard questions about Barr’s role in an effort that framed Joe Biden, then, this false claim went uncorrected.

Bill Barr is not a hypocrite; he fully backs criminalizing Democrats

The aftermath of all this was stunning.

Some of the panelists Anderson Cooper had on after the interview fact checked some of Barr’s false claims. Both Cooper and Carl Bernstein noted, for example, that crime has gone down under Biden.

But they nevertheless fawned over what they claimed was Barr’s moral compass.

Bernstein, citing a speech in which Barr used a right wing view of religion to attack progressives, hailed the former Attorney General as “a real moralist;” Cooper agreed.

Bernstein described that Barr was “dedicated to the rule of law” but exhibited hypocrisy for choosing Trump over someone who abides by it.

It’s a kind of hypocrisy. Attorney General, dedicated to the rule of law, and then he talks about how Trump has no dedication to the rule of law.

Karen Friedman Agnifilo claimed that Barr’s loyalty to the far right was a newfound thing, one that replaced care for law and order.

[H]e’s really not thinking about things that really mattered to him before, like law and order.

This is not a new thing! Barr cares about authority — the kind of authority that sends federal agents across the country to police protests blocks removed from federal property. But Barr sees the law just as Trump does, as a means for partisan gain, a tool to use to defeat his hated “progressives.”

Bill Barr interfered in the Lev Parnas investigation to prevent it from incorporating Rudy’s solicitation of known Russian spies for campaign dirt, then set up a way that Rudy could share that dirt in a way that might get funneled into the investigation into Joe Biden’s kid. That effort ended up framing Joe Biden. And CNN doesn’t seem to care, or perhaps even know that.

CNN has largely circumscribed the effort to frame Joe Biden

Ultimately, Kaitlan Collins is not entirely to blame that she let Bill Barr lie to her face rather than grilling him about his role in framing Trump’s opponent.

I think she actually makes more of an effort to be personally informed than a number of her peers. But she’s always reliant on the prep that CNN’s own reporters do. And on this story, they’ve been remarkably incurious about the role that Barr’s decision to set up a way to ingest Rudy’s dirt led to the framing of Joe Biden.

For example, here’s how CNN described the process months after these details were first available, in the wake of Smirnov’s arrest.

In June 2020, the Pittsburgh-based US attorney at the time, Scott Brady, was tasked by Justice Department officials with helping to review information from the public “that may be relevant to matters relating to Ukraine.” As part of their review, FBI Pittsburgh opened an assessment into the document that memorialized Smirnov’s 2017 discussion with Burisma executives.

It is at this point, prosecutors allege, that Smirnov first made the explosive allegations about the Bidens. Smirnov told the FBI that Burisma executives admitted to him in 2015 and 2016 that they hired Hunter Biden to “protect us, through his dad, from all kinds of problems,” and that they had paid $5 million to each Biden.

The FBI asked Smirnov to hand over documents to determine whether the information he provided was accurate. Prosecutors say that two months later, the FBI members and DOJ leadership concurred that their assessment of Smirnov’s claims be closed.

But, according to his own private testimony last year to the House Judiciary Committee, Scott Brady claimed he was “able to corroborate certain information that was represented by the CHS and is memorialized in this 1023,” including through some travel records that Smirnov had provided.

Prosecutors now say that Smirnov’s travel records are going to be used as evidence against him in his criminal case, proving that he lied about his meetings with Burisma executives.

Brady said he believed that there was a “sufficient indicia of credibility” into aspects of the 1023, and briefed Weiss on the document, according to the interview transcript. Brady said he asked the FBI to give the document to Weiss’ office.

Weiss apparently kept that investigation open through July 2023, when the FBI approached his team about “allegations related to” Smirnov’s claims. By then, Smirnov’s allegations, though not publicly attributed to him, were thrust into the political spotlight by Republicans who relentlessly promoted his Biden bribery story. [my emphasis]

CNN pitches this as a problem inherent to using informants, and not a problem created when the Attorney General sets up a dedicated side channel to search for dirt on the son of his boss’ rival.

Barr, Seth DuCharme, and Richard Donoghue are systematically excluded from this description, first by use of the passive voice to describe who tasked Brady, and then claiming that Brady asked to brief Weiss rather than that part of his tasking was making recommendations. It ignores how Jeffrey Rosen’s office intervened to force this information onto David Weiss. And it ignores Barr’s public dispute — which conflicts with the Smirnov indictment — that everyone concurred in the decision to close the investigation.

And by ignoring Barr’s intervention, it ignores Barr’s role in stoking the focus on the Smirnov allegation last year.

Likewise, while it describes Brady’s claims to have used travel records to vet Smirnov’s claims one paragraph before describing that prosecutors claim travel records prove Smirnov lies, CNN doesn’t lay out the significance of that conflict. Days after this story, Jerry Nadler referred Brady’s representations to (at least) DOJ IG for investigation.

And CNN simply punts on the problem with this whole story: that Weiss was ordered to investigate Smirnov’s tip in 2020, and then after pressure from Republicans (including Barr), reneged on a plea deal and obtained Special Counsel status so he could investigate it again. It ignores how that makes Weiss a witness in the effort to frame Biden, one whose conflicts prevent him from asking the questions that Collins didn’t either: How did Brady find Smirnov and did anyone know he was spreading obvious disinformation?

CNN’s coverage of Hunter Biden’s claims of how it affected the plea deal likewise misses the 2020 orders to share the tip.

The most newsworthy thing Bill Barr has done since Collins’ last interview with him was help someone claiming high level ties with Russian spies frame Joe Biden. But CNN, including Collins, has no interest in that. They even let him lie, uncorrected, about a directly relevant point!

Rather than explore whether Barr wittingly helped to frame Joe Biden or simply got used by a guy now claiming high level ties to Russian spies, CNN instead chose to portray Barr as a man of law and order who simply sold out purported values out of partisan gain.

And that’s why it was so easy for Barr to use CNN to spin his false claim about caring about the rule of law.

Brett Kavanaugh Thinks that Jack Smith Is as Crazy as Ken Starr Was

April 26, 2024/91 Comments/in 2020 Presidential Election, 2024 Presidential Election, Hunter Biden, January 6 Insurrection /by emptywheel

There was a subtle moment in yesterday’s SCOTUS hearing on Trump’s absolute immunity claim.

Former Whitewater prosecutor Brett Kavanaugh asked Michael Dreeben whether DOJ had weighed in on this prosecution.

Did the President weigh in? he asked. The Attorney General?

JUSTICE KAVANAUGH: As you’ve indicated, this case has huge implications for the presidency, for the future of the presidency, for the future of the country, in my view. You’ve referred to the Department a few times as having supported the position. Who in the Department? Is it the president, the attorney general?

MR. DREEBEN: The Solicitor General of the United States. Part of the way in which the special counsel functions is as a component of the Department of Justice.

The regulations envision that we reach out and consult. And on a question of this magnitude, that involves equities that are far beyond this prosecution, as the questions of the Court have —

JUSTICE KAVANAUGH: So it’s the solicitor general?

MR. DREEBEN: Yes.

Having been told that Jack Smith consulted with a Senate-confirmed DOJ official on these tough issues, Kavanaugh immediately launched into a screed about Morrison v. Olson, the circuit court decision that upheld the Independent Counsel statute.

JUSTICE KAVANAUGH: Okay. Second, like Justice Gorsuch, I’m not focused on the here and now of this case. I’m very concerned about the future. And I think one of the Court’s biggest mistakes was Morrison versus Olson.

MR. DREEBEN: Mm-hmm.

JUSTICE KAVANAUGH: I think that was a terrible decision for the presidency and for the country. And not because there were bad people who were independent counsels, but President Reagan’s administration, President Bush’s administration, President Clinton’s administration were really hampered —

MR. DREEBEN: Yes.

JUSTICE KAVANAUGH: — in their view —

MR. DREEBEN: Mm-hmm.

JUSTICE KAVANAUGH: — all three, by the independent counsel structure. And what I’m worried about here is that that was kind of let’s relax Article II a bit for the needs of the moment. And I’m worried about the similar kind of situation applying here. That was a prosecutor investigating a president in each of those circumstances. And someone picked from the opposite party, the current president and — usually —

MR. DREEBEN: Mm-hmm.

JUSTICE KAVANAUGH: — was how it worked. And Justice Scalia wrote that the — the fairness of a process must be adjudged on the basis of what it permits to happen —

Kavanaugh slipped here, and described the horror of “Presidents,” not former Presidents, routinely being subject to investigation going forward.

MR. DREEBEN: Mm-hmm.

JUSTICE KAVANAUGH: — not what it produced in a particular case. You’ve emphasized many times regularity, the Department of Justice. And he said: And I think this applied to the independent counsel system, and it could apply if presidents are routinely subject to investigation going forward. “One thing is certain, however. It involves investigating and perhaps prosecuting a particular individual. Can one imagine a less equitable manner of fulfilling the executive responsibility to investigate and prosecute? What would the reaction be if, in an area not covered by this statute, the Justice Department posted a public notice inviting applicants to assist in an investigation and possible prosecution of a certain prominent person? Does this not invite what Justice Jackson described as picking the man and then searching the law books or putting investigators to work to pin some offense on him? To be sure, the investigation must relate to the area of criminal offense” specified by the statute, “but that has often been and nothing prevents it from being very broad.” I paraphrased at the end because it was referring to the judges.

MR. DREEBEN: Mm-hmm. Yes.

JUSTICE KAVANAUGH: That’s the concern going forward, is that the — the system will — when former presidents are subject to prosecution and the history of Morrison versus Olson tells us it’s not going to stop. It’s going to — it’s going to cycle back and be used against the current president or the next president or — and the next president and the next president after that. All that, I want you to try to allay that concern. Why is this not Morrison v. Olson redux if we agree with you? [my emphasis]

Kavanaugh pretended, as he and others did throughout, that he wasn’t really suggesting this was a case of Morrison v. Olson redux; he was just talking hypothetically about the future.

JUSTICE KAVANAUGH: Right. No, I was just saying this is kind of the mirror image of that, is one way someone could perceive it, but I take your point about the different structural protections internally. And like Justice Scalia said, let me — I do not mean to suggest anything of the sort in the present case. I’m not talking about the present case. So I’m talking about the future.

This intervention came long after Kavanaugh suggested that charging Trump with defrauding the US for submitting fake election certificates and charging Trump with obstructing the vote certification after first charging hundreds of others with the same statute amounted to “creative” lawyering.

JUSTICE KAVANAUGH: Okay. For other official acts that the president may take that are not within that exclusive power, assume for the sake of argument this question that there’s not blanket immunity for those official acts but that to preserve the separation of powers, to provide fair notice, to make sure Congress has thought about this, that Congress has to speak clearly to criminalize official acts of the president by a specific reference. That seems to be what the OLC opinions suggest — I know you have a little bit of a disagreement with that — and what this Court’s cases also suggest.

JUSTICE KAVANAUGH: Well, it’s — isn’t — it’s a serious constitutional question whether a statute can be applied to the president’s official acts. So wouldn’t you always interpret the statute not to apply to the president, even under your formulation, unless Congress had spoken with some clarity?

MR. DREEBEN: I don’t think — I don’t think across the board that a serious constitutional question exists on applying any criminal statute to the president.

JUSTICE KAVANAUGH: The problem is the vague statute, you know, obstruction and 371, conspiracy to defraud the United States, can be used against a lot of presidential activities historically with a — a creative prosecutor who wants to go after a president.

But Kavanaugh returned to his insinuation that it was a stretch to prosecute a political candidate for submitting false certificates to Congress and the Archives under 18 USC 371 after his purported complaint about Morrison v. Olson.

Second, another point, you said talking about the criminal statutes, it’s very easy to characterize presidential actions as false or misleading under vague statutes. So President Lyndon Johnson, statements about the Vietnam War —

MR. DREEBEN: Mm-hmm.

JUSTICE KAVANAUGH: — say something’s false, turns out to be false that he says about the Vietnam War, 371 prosecution —

MR. DREEBEN: So —

JUSTICE KAVANAUGH: — after he leaves office?

None of this intervention made any sense; it wouldn’t even have made sense if offered by someone who hadn’t criminalized an abusive, yet consensual, blowjob for years.

After all, contrary to the demands of many, Merrick Garland didn’t appoint a Special Counsel until Trump declared himself a candidate. By that point, hundreds of people had already been charged under 18 USC 1512(c)(2) and DOJ was at least four months into Executive Privilege fights over testimony from Mike Pence’s aides and Trump’s White House counsel. Jack Smith was appointed nine months after Lisa Monaco publicly confirmed that DOJ was investigating the fake electors and six months after overt subpoenas focused on the scheme came out (to say nothing of the treatment of Rudy Giuliani’s phones starting a year earlier).

This is not a Morrison v. Olson issue.

Rather, Kavanaugh is using his well-established hatred for Morrison v. Olson to complain that Trump was investigated at all — and that, after such time that a conflict arose, Garland appointed a non-partisan figure to head the already mature investigation.

It was one of many examples yesterday where the aggrieved white men on the court vomited up false claims made by Trump.

Kavanaugh made no mention of the appointment of Robert Hur — not just a Republican but a Trump appointee who had deprived Andy McCabe of due process — to investigate Joe Biden for precisely the same crime for which Trump was charged. That’ll become pertinent at such time as Donald Trump’s claim to Jack Smith’s appointment gets to SCOTUS. After all, in that case, Trump will have been similarly treated as Joe Biden. In that case, Hur’s distinction between Biden’s actions and Trump’s should (but probably won’t) reassure the right wing Justices that Trump was not selectively prosecuted.

Speaking of things Kavanaugh didn’t mention, his false complaint — and which Clarence Thomas raised as well — comes at a curious time.

Because of Aileen Cannon’s dawdling, Trump’s challenge to Jack Smith’s appointment won’t get to SCOTUS for months, if ever.

But Hunter Biden, whose challenge to David Weiss’ appointment takes the same novel form as Trump’s — an appropriations clause challenge — may be before the Third Circuit as soon as next week. In a passage of Abbe Lowell’s response to Weiss’ demand that the Third Circuit give Lowell, an observant Jew, three days including Passover to establish jurisdiction for his interlocutory appeal, Lowell scolded Weiss for presuming to know the basis of his appeals.

The Special Counsel boasts that it prepared its motion in “two days” (Mot.Exped.3), but the legal errors that permeate its motion to dismiss only underscore why more time is needed to adequately research and thoughtfully brief the jurisdictional issues for this Court. The Special Counsel ignores numerous bases for jurisdiction (e.g., 28 U.S.C. §§ 1291 (collateral order doctrine), 1292(a)(1) (denial of Appropriations Clause injunction), and 1651 (mandamus)) over this appeal, and the legal claims it does make are flatly wrong, compare Mot.6 (falsely claiming “all Circuit Courts” reject reviewing denials of motions to enforce plea agreements as collateral orders), with United States v. Morales, 465 F. App’x 734, 736 (9th Cir. 2012) (“We also have jurisdiction over interlocutory appeals of orders denying a motion to dismiss an indictment on the ground that it was filed in breach of a plea agreement.”)

In addition to mandamus (suggesting they may either attack Judge Noreika’s immunity decision directly or ask the Third Circuit to order Delaware’s Probation Department to approve the diversion agreement that would give Hunter Biden immunity), Lowell also invoked an Appropriations clause injunction — basically an argument that Weiss is spending money he should not be.

Normally, this would never work and it’s unlikely to work here.

But even on the SCO challenge, there are a number of problems in addition to Lowell’s original complaint: that Weiss was appointed in violation of the rules requiring someone outside of DOJ to fill the role.

For example Weiss keeps claiming to be both US Attorney and Special Counsel at the same time (most obviously in claiming that tolling agreements signed as US Attorney were still valid as Special Counsel), or the newly evident fact that Weiss asked for Special Counsel status so that he could revisit a lead he was ordered to investigate — in the wake of Trump’s complaints to Bill Barr that Hunter Biden wasn’t being investigated diligently enough — back in 2020, a lead that incorporated Joe as well as Hunter Biden, a lead that uncovered an attempt to frame Joe Biden, an attempt to frame Joe Biden to which Weiss is a witness.

The oddities of Weiss’ investigation of Joe Biden’s son may even offer another claim that the right wing Justices claim to want to review. Jack Smith claims to have found only two or three charges with which Kavanaugh, who insists (former) Presidents can only be charged under statutes that formally apply to Presidents, would leave available to charge a President. But there’s one he missed: 26 USC 7217, which specifically prohibits the President from ordering up a tax investigation into someone, which Lowell invoked in his selective and vindictive prosecution claim. Lowell has not yet proven that Trump directly ordered tax officials, as opposed to Bill Barr and other top DOJ officials, to investigate Hunter Biden for tax crimes. But there’s a lot of circumstantial evidence that Trump pushed such an investigation. Certainly, statutes of limitation on Trump’s documented 2020 intrusions on the Hunter Biden investigation have not yet expired.

The Hunter Biden investigation has all the trappings of a politicized investigation that Kavanaugh claims to worry about — and with the Alexander Smirnov lead, it included Joe Biden, the Morisson v. Olson problem he claims to loathe.

That’s a made to order opportunity for Brett Kavanaugh to restrict such Special Counsel investigations.

Except, of course, it involves Democrats.

David Weiss Treats IRS Agents Who Accused Him of Misconduct as “Whistleblowers”

April 23, 2024/7 Comments/in Hunter Biden /by emptywheel

Hunter Biden is attempting to appeal the adverse decisions from both Maryellen Noreika and Mark Scarsi, both attempts for which there is no obvious basis to make an interlocutory appeal. As I’ll return to, in the Delaware case, David Weiss’ prosecutors are trying to prevent the appeal from delaying a not-yet established deadline for Hunter to reveal what he knows.

After the Ninth Circuit set a normal briefing schedule, with Hunter’s opening brief due on July 5 and the response a month later, after the scheduled trial date, Weiss moved to have that appeal dismissed on — facially at least — sound jurisdictional grounds, asking the court to dismiss this appeal by May 14, in time for existing pretrial deadlines.

Aside from its treatment of three prior Ninth Circuit plea agreement appeal attempts — two successful (including one Abbe Lowell cited in the Third Circuit) and one not — that motion is uninteresting. Except on one point: it calls the media campaign by the disgruntled, debunked IRS agents at the core of Hunter’s egregious misconduct claim “whistleblower disclosures.”

Defendant moved to dismiss the indictment for due process violations based on outrageous government conduct, specifically pointing to whistleblower disclosures to Congress and the media of alleged grand jury information in violation of Federal Rule of Criminal Procedure 6(e) and confidential tax return information in violation of 26 U.S.C. § 6103 by two IRS agents involved in the investigation of defendant. (GEX 55)

While it’s true that Congress made a big stink over covering the release of otherwise prohibited disclosures of taxpayer materials under a whistleblower claim, Hunter’s claim includes conduct that precedes that stink, and also includes grand jury materials and a non-jurisdictional committee not covered by such stink.

Plus, I find it especially weird for David Weiss, who testified to Congress that the disgruntled IRS agents were wrong about their claims as to his charging authority, to call them whistleblowers. Similarly, he told Congress that Lesley Wolf is “a person of integrity” and agreed that Wolf, “did her work on the Hunter Biden matter in a professional and unbiased manner without partisan or political considerations?” He even described remembering Gary Shapley’s “body language” at the October 7 meeting whence Shapley invented claims that formed the basis of his later media campaign. David Weiss’ testimony is inconsistent with calling those disclosures whistleblower disclosures.

So I find it odd that Weiss, here, treats the IRS agents as whistleblowers. He didn’t do so in his response to Hunter’s motion. Derek Hines called them whistleblowers once in the motions hearing before Judge Scarsi. Leo Wise, in his brazenly false claim that there’s no proof the IRS agents affected the case, instead called them, “hyenas, baying at the moon.”

But then Abbe Lowell noted that the record before Scarsi included an instance where the agents “blew by” whistleblower procedures.

I’ll ask you to look at what we’ve put in as — and what the record shows about just compare what the IRS — and by the way, earlier, you called them whistleblowers. I know that that’s a word. I am going to put that word in quotes for a variety of reasons because they were told what whistleblowers are supposed to do. They were even admonished to do anything they do the right way, and they blew past those warnings. And they blew past those warnings by doing that at a congressional committee. That’s not covered by the whistleblower statute or the whistleblower procedure.

It won’t matter for this appeal. And while I expect Weiss has totally misapprehended the nature of Lowell’s appeal, it is still highly likely that Weiss’ motion to dismiss this appeal will work.

But along the way, Weiss has ceded whistleblower status to the IRS agents who invented conspiracy theories about his own actions.