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The Orbanization of US Politics Began Years Ago

In this post, I posited a way of understanding the election. Where Kamala Harris and down ballot Democrats engaged in traditional politics, it worked (as exhibited by Harris’ better performance in swing states and the retention of at least four of the swing state Senate seats, among other things). But propaganda worked far better across the board (exhibited, in part, by the large numbers of disaffected voters who supported Trump because they believed false claims about his policies or were mobilized by propaganda campaigns stoking fear).

Since I wrote the post, the election results have actually gotten a lot closer. Trump won by a lower percentage of the popular vote than Joe Biden did (and only just cracked 50% of the vote), and like Biden, won by narrow margins in the states that mattered.

If I’m right about that dynamic — that politics worked but propaganda worked far better — then it means much of the post-election soul-searching is misplaced (and, indeed, a dangerous misallocation of focus). That’s because Harris lost, in part, because of media disfunction, because electoral choice became dissociated from political persuasion more than any recent US election, largely due to an assault on the press and rational thought.

All this builds on Fox News and other institutions of right wing propaganda — though, partly because of the Dominion judgment and partly because Pete Buttigieg had started to crack through that facade, that’s an area where Dems did important work.

It builds on the hollowing out of the traditional press that has been happened for years, as corporate raiders turn news into a profit center. Several things made that worse, this year. As WSJ reported the other day, social media referrals to legacy newspapers cratered last year.

This was a deliberate choice by gatekeepers to dramatically alter their function, from a referral service to a disinformation swamp. But it had an immediate affect on the readership of those legacy outlets and other services relying on them, effectively neutering their power. (One reason I recommend Bluesky over other Xitter alternatives is because Bluesky encourages outlinks.)

At the same time, the oligarchs who own those papers shifted their priorities in ways that would have more subtle impact on the coverage. WSJ, which has flourished in spite of the media environment, nevertheless fired a bunch of journalists in spring, targeting local news and, anecdotally, a certain profile of journalist. Jeff Bezos taunted WaPo’s reporters with their declining influence when he brought in Will Lewis, a Murdoch retread with a history of protecting the boss, and Will Lewis reveled in the kind of ethically problematic both sides journalism that chases manufactured scandals as much as GOP crime. Bezos taunted his journalists again when he declined to endorse Kamala Harris, only to issue a simpering congratulations once Trump won.

There’s still a lot to unpack about the turn of the oligarchs (I’ve left out their embrace of AI because I hope even they will soon have to concede that AI hasn’t replaced human workers but it has enshittified their product). But when a number of these things all happened in spring, I remember wondering whether all the oligarch owners had gotten together in a room and decided to make their product worse in an election year, all in the name of chasing different kinds of influence.

Partly, they’re trying to compete with podcasts. And while there’s a lot to be said for the authenticity of podcasts, it’s another industry driven by algorithms, and some of the key platforms cater to far right politics.

Before we turn to Musk, consider that Trump used manufactured grievances — including the goddamned Hunter Biden hard drive!! — from 2020 to bully Mark Zuckerberg in advance of the election. It’s unclear to what degree Zuckerberg’s efforts to depoliticize Meta stem from fear, from a desire for another tax cut, or from a genuine solidarity with his oligarch brothers. Whatever the motive, Threads was built not to replicate what Twitter used to be, yet it continues to be the destination for journalists exercising no critical thinking of what they need from a new social media platform. And Meta sold at least a million dollars in ad spending that violated Meta guidelines. Something led Zuckerberg to reverse his prior support for democracy, and it had a significant effect on the election.

Ah, Elon Musk. Perhaps his original motivation for buying Xitter was simply the imagined moral injury his ego suffered when Grimes ditched him to (briefly) date Chelsea Manning and his daughter, Vivian Jenna Wilson, transitioned (since the election, Wilson has announced she’s leaving the US for a country more welcoming to trans people). But the plan definitely took shape in the aftermath of January 6. It appears to have taken shape with the kibbitzing of Stephen Miller.

Musk — aided by David Sacks — played a key role in the kind of operation we see in the Viktor Orbán regime, but which happened in order to install Trump for a second term. By giving Substackers who were willing to misrepresent primary documents access to Xitter’s documents, Musk created a false narrative about moderation, pitching voluntary efforts to protect democracy as instead efforts to censor far right speech. That, in turn, gave demagogues in Congress the opportunity to create the appearance of substantiating that narrative with an investigation into the people who formerly moderated social media. This investigation resulted in legal costs and death threats to those involved — but only easily debunked propaganda reports that melt under the least scrutiny.

Nevertheless, those investigations have an enormous chilling effect. Paired with lawsuits against entities like the Stanford Internet Observatory, they disrupted most of the infrastructure attempting to limit disinformation on social media.

When Congressmen like Jordan and James Comer investigate, they aren’t bound by mere facts. They invent wildly. But with the help of process-oriented Congressional beat journalists, they still manage to tell their tales anyway. Such journalists report what Jordan and Comer said and who they’ve subpoenaed with almost no scrutiny of whether any of it makes sense. Those beat journalists are getting played.

This is precisely the kind of persecution of civil society at which Viktor Orbán has excelled. Many people are just beginning to think of what will come, but (as Renee DiResta, one of the targets of Jim Jordan’s wrath, keeps noting on Bluesky), what will come already started, years ago, and accelerated two years ago in earnest.

The election result significantly built on these prior Orbanization efforts. Certainly, Xitter became the cesspool of disinformation that researchers formerly combatted. Musk favored pro-Trump speech and seems to have throttled others (though some of Musk’s Terms of Service and API changes make it far harder to quantify). That favored speech includes his own, from the day he endorsed Trump.

And it wasn’t just the assault on moderation. Congress also targeted state and local prosecutors, the professionalization of the FBI, FTC Commissioner Lina Khan, any pushback on Elon Musk, and even government efforts to protect against Russian influence operations. The lawsuits against media outlets — even the embarrassingly frivolous ones launched by Devin Nunes, and the efforts to co-opt oligarch owners, also played a role. The Hunter Biden witch hunt, with its mythical foundation in the laptop that is not a laptop, its projections of corruption, the constant narrative it fed right wing propaganda (drowning out even Ron DeSantis’ bid to challenge Trump), was undoubtedly a big part of Joe Biden’s terrible approval ratings, and it is precisely what we’ll see all the time going forward.

We can’t assess the election without assessing the degree to which such efforts impacted the race. We sure as hell can’t discuss how to win the next election without thinking of how Republicans will work to further neuter liberal and nonpartisan civil society that protects democracy. Some of the biggest supporters for Kamala Harris will spend the next four years fighting to protect their professional lives and, in some cases, even their freedom.

The same disinformation researchers who’ve been evicted from safe university posts did their job in at least documenting what happened and in real time the press tracked what they were seeing (and what dedicated journalists found themselves). Next time, however, both the disinformation researchers and the press will be under more sustained assault (or, via their oligarch owners, cooptation), both via targeting their funding and creating more scapegoats to chill such work.

So if you want to think about the next election — if you’re optimistic enough to assume there will be a next election — you have to factor in the assault on civil society that has already started and will ratchet up in the next few years.

Three Ways Jim Jordan and James Comer Made Trump Less Safe

August 20, 2024/25 Comments/in 2020 Election, 2024 Election, Cybersecurity, emptywheel /by emptywheel

With the exception of an initial question that attempted, with no success, to pin down Donald Trump’s recent communications with Bibi Netanyahu (Trump instead described the last time he had met Bibi face-to-face, before asserting he had not spoken to him), the questions at last Thursday’s press conference were truly abysmal. Half were horse race questions, many posed from a presumptively pro-Trump position. And that’s before the question about why god miraculously saved Trump’s life.

But there were a few questions yelled out after the Cheerio questions that were more interesting, such as what Trump thought about Ukraine’s incursion into Russia and what he thought about the hack of his campaign (which WaPo has confirmed targeted Susie Wiles).

While I originally thought this response from Trump was a response to the Ukraine question, I think, instead, he was responding to the hacking question.

Can you say anything about the hacking of your campaign?

I don’t like it. Really bad. I’m not happy with it. Our government shouldn’t let that happen.

Does there need to be a government response?

Yeah there should be. Our government should not let — they have no respect for our government.

Trump blamed the government after, earlier in the Potemkin Presser, he had already predicted that “we” will be friendly with Russia’s increasingly critical ally, Iran.

We will be friendly with Iran. Maybe, maybe not. But they cannot have a nuclear weapon. We were all set to make sure they did not have a nuclear weapon.

Yesterday, the FBI, CISA, and ODNI attributed the hack — and efforts to compromise people close to President Biden — to Iran.

This includes the recently reported activities to compromise former President Trump’s campaign, which the IC attributes to Iran. The IC is confident that the Iranians have through social engineering and other efforts sought access to individuals with direct access to the Presidential campaigns of both political parties. Such activity, including thefts and disclosures, are intended to influence the U.S. election process. It is important to note that this approach is not new. Iran and Russia have employed these tactics not only in the United States during this and prior federal election cycles but also in other countries around the world.

I find it remarkable that Trump is blaming the government — and not just because he himself begged Russia to hack his opponent in 2016 and the worst recent hack, Solar Winds, happened under his stewardship.

I find it remarkable because key Trump allies like Jim Jordan and James Comer have been working hard to make him less safe.

They’ve done so in several ways (and LOLGOP and I laid out in this bonus episode of Ball of Thread).

First, in their effort to spin government efforts to combat foreign malign influence and election-related dis- and misinformation as an attack on free speech, they’ve demonized the effort to combat such influence operations, particularly efforts of the Cybersecurity and Infrastructure Security Agency, which in 2020 confirmed the integrity of the election.

Jordan and Comer also championed the views of Matt Taibbi and Michael Shellenberger, the latter of whom has been obsessed about misrepresenting a report that Stanford’s Internet Observatory offered in 2020 to provide guidelines about what to do with potentially hacked information.

“Since Daniel Ellsberg’s 1971 leak of the Pentagon Papers,” wrote the authors, “journalists have generally operated under a single rule: Once information is authenticated, if it is newsworthy, publish it…. In this new era, when foreign adversaries like Russia are hacking into political campaigns and leaking material to disrupt our democracy and favor one candidate, journalists must abandon this principle.”

Stanford’s goal was explicitly to change norms so journalists would not do what they did in 1971 with the Pentagon Papers. “The more news outlets that embrace a new set of norms, the more resilient American media will be against exploitation by malicious actors,” the authors write.

The authors, Grotto and Zacharia, proceed to celebrate news media not reporting on things the national security state doesn’t want them to report.

[snip]

The authors describe how the news media will, in real life, cover the Hunter Biden laptop, in October 2020. “Focus on the why in addition to the what,” they say. Make the disinformation campaign as much a part of the story as the email or hacked information dump. Change the sense of newsworthiness to accord with the current threat.”

Quinta Jurecic cited the Stanford Report when advocating that journalists exercise more caution with the materials believed to derive from an Iranian hack.

But the shame of having been so thoroughly played by foreign intelligence was stark enough that many journalistic institutions reconsidered their approach in advance of the 2020 vote. An influential Stanford report recommended that journalists presented with potentially hacked material “[m]ake the disinformation campaign as much a part of the story as the email or hacked information dump”—focusing on “why it was leaked as opposed to simply what was leaked,” and taking care to establish that the material is authentic and not a malicious forgery.

This appears to be the approach that major news outlets contacted by the mysterious “Robert” are taking so far.

If we had listened to Jordan and Shellenberger, the media would have to publish those stolen documents.

Finally, there are Jordan’s efforts to undermine cooperation between the FBI and tech companies, and his personal targeting of Elvis Chan.

That cooperation appears to have been instrumental in halting the hacking campaign targeting both Biden and Trump’s campaigns. Microsoft and Google may have first identified the hacking attempts. Indeed, in a recent report on Iran’s hacking efforts, Google describes proactively contacting the FBI.

For many years, Google has worked to identify and disrupt malicious activity in the context of democratic elections. During the 2020 U.S. presidential election cycle, we disrupted APT42 attempts to target accounts associated with the Biden and Trump presidential campaigns.

In the current U.S. presidential election cycle, TAG detected and disrupted a small but steady cadence of APT42’s Cluster C credential phishing activity. In May and June, APT42 targets included the personal email accounts of roughly a dozen individuals affiliated with President Biden and with former President Trump, including current and former officials in the U.S. government and individuals associated with the respective campaigns. We blocked numerous APT42 attempts to log in to the personal email accounts of targeted individuals.

Recent public reporting shows that APT42 has successfully breached accounts across multiple email providers. We observed that the group successfully gained access to the personal Gmail account of a high-profile political consultant. In addition to our standard actions of quickly securing any compromised account and sending government-backed attacker warnings to the targeted accounts, we proactively referred this malicious activity to law enforcement in early July and we are continuing to cooperate with them.

In their effort to undermine initiatives to combat disinformation, Jordan and Comer spent two years demonizing this kind of cooperation. They spent a year targeting Elvis Chan, the FBI agent whose day job is precisely this kind of coordination with Silicon Valley companies to prevent hacks using their infrastructure, based on conspiracy theories Taibbi and Shellenberger spread about the tech companies decision to throttle the original Hunter Biden laptop story, going so far as suing Chan because he wanted to be represented by both FBI and his own counsel for testimony to the House (they dropped the suit Thursday, though I have yet to get an explanation of why).

Trump has spent years demonizing the Deep State. At Trump’s behest, Jordan and Comer have spent two years attacking the Bureau. But on both Iran’s assassination attempt and this hacking attempt, the Deep State saved his ass.

Jim Jordan Publishes Intelligence Analysis of Trump’s Authoritarian Tendencies

July 5, 2024/44 Comments/in 2020 Presidential Election, 2024 Presidential Election, January 6 Insurrection /by emptywheel

As I laid out here, I’ve been going through the transcripts from Jim Jordan’s search to find people who politicized intelligence, like his investigation showed John Ratcliffe to have done.

And in addition to the way Jordan exposed new information about Ratcliffe politicizing intelligence, Jordan also helpfully elicited an intelligence analysis of Trump’s dictatorial personality.

A Republican staffer was asking Mike Morell why he sent an email thanking those who signed the 50 spook letter, in which Morell said the 2020 election was the most important since the Civil War. And then, violating the rule that you never ask a question to which you don’t know the answer, the staffer then asked why Morell said that.

Q In an email you sent to signatories thanking them for signing on, you described this as, quote, the most important election since 1860 and 1864 when the very existence of the country was on the ballot.

[snip]

Q Why did you believe that this was the most important election since 1860 and 1864?

So Morell answered, drawing on his training analyzing the personality traits of world leaders.

I have to tell you that, you know, spending 33 years at CIA and watching literally hundreds of world leaders during that time, President Trump’s personality traits deeply concerned me, what I believed to be deep narcissism, what I believed to be deep paranoia, what I believe to be a type of sadism where you — not sexually, of course, but a type of sadism where you, you know, are happy when your opponents have been injured in some way — I’m talking politically — that those were all traits that I saw in foreign leaders who did significant damage to their country and significant damage to the democracies of their country. I’m thinking — you know, I’m thinking of Mugabe in Zimbabwe. I’m thinking of Chavez in Venezuela. I’m thinking of Putin in Russia. So I was deeply concerned about the potential impact of President Trump on our democracy.

And, you know, my fear, in my view, was borne out by his failure to act on January 6, 2021. So that’s what I meant when I wrote that. That’s what I was thinking.

Q The public statement —

Chairman Jordan. You couldn’t have been thinking about January 6, 2021, because —

Mr. Morell. No. I wasn’t thinking about January 6th. I was thinking about everything I said up to that point, sir. You’re correct.

To Jordan’s credit, he caught Morell seeing, in January 6, confirmation of his analysis.

Which it was.

“This is a rush job, as it needs to get out as soon as possible:” Jim Jordan-Led Investigation Discredits John Ratcliffe

July 3, 2024/27 Comments/in 2020 Presidential Election, 2024 Presidential Election, emptywheel, Hunter Biden, Mueller Probe /by emptywheel

In his latest effort to use the House Judiciary Committee as a goon squad to intimidate Donald Trump’s enemies, Jim Jordan actually developed proof that John Ratcliffe — and not the 51 former spooks he was after — inappropriately politicized intelligence to manufacture debate props.

And then Jordan did it himself.

I have the perfectly curated Xitter account to learn when Jim Jordan has released his latest installment of weaponization against democracy.

Last week, he issued his latest attempt to make a scandal out of the true free speech of the 51 former spooks who wrote a letter saying that the release of a Hunter Biden laptop days before the election “had all the classic earmarks of a Russian information operation.” My replies were overrun with trolls chanting incoherent claims.

Of course the trolls in my Xitter feed didn’t know the most basic details of the letter or known facts about the copy of a hard drive referred to as a Hunter Biden laptop:

The former spooks didn’t say this was disinformation, no matter how many times Jordan or Glenn Greenwald lie and say they did. In fact, they specifically caveated that they didn’t know if the emails were genuine and did not have evidence of Russian involvement.
Nothing revealed about the laptop or the hard drives purportedly based on the laptop rules out Russian involvement. That’s true, in part, because the FBI never bothered to test the laptop to see if anything had been added, never indexed it, and when introduced at trial, the summary witness specifically said she had not looked for signs of tampering. Plus, there were enough Russian drug and sex workers in close proximity to earlier Hunter Biden laptop compromises to allow for a role, particularly in packaging up the device.
As the Democratic rebuttal notes, the 51 spook letter couldn’t have caused the social media companies to throttle the original New York Post story without a time machine, as Twitter and Facebook had stopped throttling the story several days before the letter was published. Linear time. It’s like magic to these trolls.

Even though Jordan’s latest report substantiates absolutely no misconduct, the trolls nevertheless yapped and yapped about it. Jordan showed:

While Mike Morrell did target the letter to the last debate (the same one where Trump invited Tony Bobulinski to make claims that have not held up), the other participants were not doing this for the Biden campaign; they were doing it to speak out against Russian interference in the 2020 election
The former spooks couldn’t have leaked classified information because none of them were read into pertinent information regarding the Russian spies cultivating Rudy Giuliani
The former spooks got preclearance to publish the letter via the normal process
After preclearance, the letter was forwarded for Gina Haspel’s attention, but neither she nor anyone else thought it was more important than vaccinating the CIA workforce
Some of the people involved were private citizens with contracts that did not strip them of their free speech

In other words, the 51 spooks followed the rules, and Jordan was stuck trying to turn it into a scandal.

The Jordan report was only 31 pages and, like a college freshman composition paper, blew entire pages with big screen caps repeating the complaints of two random spooks complaining about “random signatures” on the letter and some discussion of Mark Polymeropoulos getting something excluded from a follow-up.

Polymeropoulos’ attorney, Mark Zaid, explained that CIA redacted two lines, which had nothing to do with Hunter Biden, from the Polymeropoulos follow-up — but that was precisely how preclearance is supposed to work.

Mr. Polymeropolous submitted to the PCRB a two page talking points memo about the subject matter. Obviously, he knew that there was going to be media attention concerning the issue and he wanted to be properly prepared to address the topic if asked. He followed the standard procedure for review of information intended to be made public. No different than any other individual who has a prepublication review requirement. As part of its review, which was handled in the normal timely fashion for such a short document, CIA redacted two lines of information as being classified. Those two lines had nothing to do with the Hunter Biden laptop specifically and concerned Mr. Polymeropolous’ background experience with Russia and a comment concerning that country’s activities generally. Of course, that information was properly protected by Mr. Polymeropolous and never used. To say that this constituted an attempt to use classified information is farcical and reflects a complete lack of understanding how the prepublication review process works. The system operated exactly how it was supposed to and is being distorted for political purposes.

That’s it. That’s the best Jordan could rush out to give Trump something to complain about in a presidential debate over and over.

To think that I would, in front of generals and others, say suckers and losers – we have 19 people that said it was never said by me. It was made up by him, just like Russia, Russia, Russia was made up, just like the 51 intelligence agents are made up, just like the new thing with the 16 economists are talking.

It’s the same thing. Fifty-one intelligence agents said that the laptop was Russia disinformation. It wasn’t. That came from his son Hunter. It wasn’t Russia disinformation. He made up the suckers and losers, so he should apologize to me right now.

[snip]

I’ve dealt with politicians all my life. I’ve been on this side of the equation for the last eight years. I’ve never seen anybody lie like this guy. He lies – I’ve never seen it. He could look you in the face. So – and about so many other things, too.

And we mentioned the laptop, We mentioned “Russia, Russia, Russia,” “Ukraine, Ukraine, Ukraine.” And everything he does is a lie. It’s misinformation and disinformation. The “losers and suckers” story that he made up is a total lie on the military. It’s a disgrace.

This was Trump’s prepackaged answer to attempt to projection his own lying onto Biden. It was barely more vigorous than Biden’s rebuttals.

As flimsy as it was, though, Trump’s use of the 51-spook letter was part of a larger effort, one designed to bully those who speak up against Russian disinformation, disinformation generally, or in favor of rule of law. As John Brennan described, it created a furor about the letter that distracted from Russian intervention, which in turn serves to divide the country.

I think the firestorm, the furor has been created responding to the letter as opposed to the letter itself, as I responded to one of the Congressmen earlier. So it’s unfortunate that this is taking up all your time, it’s taking up my time, and it is, again, further dividing the country.

And, by design, it has chilled speech that talks about Russian interference.

One after another of the spooks interviewed confessed they or others would be chilled by the precedent of Jordan investigating private citizens for their free speech. Kristin Wood described how Mike Flynn put out all their names on a Telegram chat, leading to stalking and death threats.

Several ways. First of all, I’ve received death threats. I’ve received vicious calls, texts, emails from all sorts of random people. Mike Flynn — General Flynn posted on Telegram all of our names and said, you know, let them know how we feel. It unleashed this viciousness that had several other folks calling the police, calling the Threat Management Unit at CIA, to let them know what was happening.

And so for the first time ever, I looked at getting a gun and getting a concealed carry permit because it’s not just that people have been mean or say horrific things, but we’ve seen them take action. And so that feeling of vulnerability for speaking, exercising a First Amendment right, and for saying what I thought was as obvious as there’s air in — there’s air. Let’s just let the FBI do their work.

It has a profound effect on health as well. I’ve been to the emergency room for stress because of all of this. And so when you ask would I do this again, I would insist on a little more precision of language. But it has the effect of censoring people who have more than a thousand years of experience in this topic. And I would think the focus would be on stopping Russia and not on what feels like persecution.

Several of the spooks admitted the mob treatment would lead them to decline further involvement in anything political. Most described that it would chill others.

At that level, the spooks are just like the disinformation experts Jordan also targeted, those who tracked efforts to muddy reason and truth. Their lives have been upended because they attempted to track Russian disinformation that served Republican interests, and the personal and financial cost is shutting down those efforts during an election year.

But then something funny happened.

House Republicans kept pushing the spooks, arguing — notwithstanding the public reporting on Rudy Giuliani’s efforts to solicit dirt from known Russian agent Andrii Derkach — that the spooks should have known, somehow, that the hard drive called a Hunter Biden laptop wasn’t Russian disinformation (which, as noted, the spooks didn’t claim).

Republicans — often Jordan himself — kept asking whether the spooks knew that John Ratcliffe had claimed the laptop was not disinformation (which, again, was not what the letter claimed).

Chairman Jordan. Were you aware of Mr. Ratcliffe’s statement on the morning of the 19th, prior to the letter being sent, where he said in an interview on FOX News that morning that this is not part of the Russian disinformation campaign?

And that led multiple witnesses to explain why Ratcliffe simply wasn’t credible. Wood described that a proper counterintelligence investigation takes longer than would have transpired (no one knew how long the FBI had had the laptop).

Ms. Wood. So, I think what I would say in response to that is that the letter — the purpose of the letter was to say, Let’s not rush to judgment. Everyone, regardless of who they are as Americans, deserves due process. Let’s let the FBI do their work. And when DNI Ratcliffe said that — so as you have seen from all of these investigations, right, they take a very long time to do, to do the considered judgment of 17 or 18 intelligence agencies, and to come up with that to do the exhaustive search of asking new sources, of pulling in every bit of signals intelligence, there’s just no way that’s possible to have been done in the timeframe in which that statement was made. So our whole point was to say, Be careful here. Let us — we don’t know if this is all real. We don’t know if all the emails are real, and we don’t know if this is tied to the Russians. Let’s let the process work

James Clapper described that, not only didn’t he consider Ratcliffe a reliable source, but that he made the statement before any investigation of the laptop.

Mr. Clapper. Well, if the Department of Justice or the FBI or some other legitimate credible source of — who had done a credible forensic analysis — certainly I would accept that. That’s why I suggested that would be a good — would have been a good fix — a good addition to the letter had we said that.

Mr. Gaetz. Are you aware of Director Ratcliffe, the DNI at the time, contradicting the thrust of this letter you signed?

Mr. Clapper. Well, okay. He said that statement before, I think, an investigation had begun of the laptop. So I don’t know where he’s coming from making a statement like that.

In response to a follow-up question from the Minority, Clapper also agreed that Ratcliffe himself was making public statements in anticipation of the debate.

Q It’s an article reporting on Ratcliffe’s remarks, and it’s dated October 19th, 2020, 1:49 p.m. And we’re just introducing it for the fact of the date. The New York Post story in question was released on October 14th, correct?

A Yes.

Q So that would have been 5 days before Ratcliffe made his remarks?

A Right.

Q And I think you said earlier he couldn’t have even begun an investigation in that time period. Is that correct?

A Correct.

Q And can you explain what you mean by that?

A Well, I don’t know how — what his basis for making that statement is when the laptop itself hasn’t been investigated. The DNI, Office of the Director National Intelligence, has no organic forensic analysis capability at all. So they’re dependent on other components of the intelligence community, in this case the FBI, to render such a judgment, which hadn’t been rendered. So I don’t know how he could make that statement.

Q Okay. And even assuming that Ratcliffe — sorry. Withdraw that. And he made these remarks on October 19th, which was the day before the second debate, correct? The second Presidential debate was the 20th.

A Uh-huh.

Q So isn’t it possible that Ratcliffe also made his remarks in the hope that they would impact the debate?

A Well, one could conclude that, yes.

John Brennan was even more disdainful of Ratcliffe’s actions. He described that Ratcliffe’s release of his briefing notes, for the first 2020 debate, made it clear that Ratcliffe was involved in politics.

Chairman Jordan. Director, were you aware of what Director of National Intelligence John Ratcliffe said on the morning of October 19th regarding this Biden laptop story, where he said that it wasn’t a Russian disinformation operation?

Mr. Brennan. I don’t know if I was aware of it at the time, but I would have dismissed it anyway.

Chairman Jordan. Why would you have dismissed it?

Mr. Brennan. Because I don’t think John Ratcliffe was an independent, objective leader of the intelligence community at the time.

Chairman Jordan. So you would dismiss the statement from the Director of National Intelligence — the Acting — the Director of National Intelligence at the time, in the administration, getting intelligence in real-time, you would just dismiss that out of hand?

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

Mr. Gaetz. So your dismissing Mr. Ratcliffe was somehow payback for the fact that you thought that your briefing to President Obama had been mischaracterized?

Mr. Brennan. No, that’s not what I said.

Mr. Gaetz. Okay. Well, I’m trying to understand how this event that seems to have aggrieved you regarding the briefing to President Obama impacted your view of the Ratcliffe assessment.

Mr. Brennan. It didn’t aggrieve me. It just indicated to me that John Ratcliffe was not going to be an independent, nonpartisan, apolitical actor.

Brennan is referring to the notes he got about materials found among hacked documents in Russia, which Republicans and John Durham spun up, first of all, as true (rather than suspected Russian disinformation), and then misrepresented to claim that Hillary had a plan to frame Donald Trump.

Not only did Brennan see this as an election season stunt (which I observed at the time), but he described that Ratcliffe “misrepresent[ed] the facts” about the materials.

Jim Jordan has been searching for a former spook to accuse of politicizing intelligence in 2020 for years, and he finally found one! Trump’s hand-picked Director of National Intelligence, John Ratcliffe, who was doing precisely what Jordan falsely accused the former spooks of doing, but did so while still an employee of the Intelligence Community.

Update: Corrected that the “laptop” was not just a “hard drive,” but in fact a copy of another hard drive.

Lesley Wolf Vindicated by Alexander Smirnov Indictment

February 26, 2024/154 Comments/in 2020 Presidential Election, 2024 Presidential Election, Hunter Biden /by emptywheel

In the wake of the Alexander Smirnov indictment, the 51 former spooks who wrote a letter stating their opinion that the release of Hunter Biden emails to the NY Post is consistent with a Russian information operation have claimed vindication. That has led to this problematic Ken Dilanian report parroting David Weiss filings that deliberately obscured the evidence in the Hunter Biden case. And that, in turn, has led to a flood of people expressing opinions about the laptop turned over by John Paul Mac Isaac (Olivia Nuzzi, Reese Gorman) that exhibit no clue about how precarious that evidence is now.

In other words, that has renewed a debate consisting of misrepresenting the 51-spook letter, then misstating what the public evidence about the laptop shows.

I’ll return to the details about the laptop that these people are missing; hopefully until I get there, they’ll consider whether David Weiss’ claim that a Keith Ablow picture of a picture of a table saw with sawdust was instead Hunter Biden’s cocaine really validates the laptop, as they seem to believe it does.

But there is one person who has been vindicated: Lesley Wolf, the AUSA who aggressively pursued real charges against Hunter Biden, even while attempting to prevent repeated onslaughts of political garbage from tainting the case.

Among the many complaints the two disgruntled IRS agents aired, largely targeting her, one was that, “This investigation has been hampered and artificially slowed by various claims of potential election meddling.” That appeared in a memo submitted within the IRS in December 2020, probably written by Gary Shapley. The IRS agents believed they knew better than Lesley Wolf about efforts to interfere in the election.

The IRS agents and their allies in Congress bitched over and over that Wolf and others had not ingested politicized dirt into the investigation readily enough.

For example, Joseph Ziegler described that investigators asked to reinterview Tony Bobulinski after his October 23, 2020 meeting with the FBI, but were not permitted to do so because he “was not viewed as a credible witness” — and that was before Cassidy Hutchinson’s testimony, now backed by video, about the sketchy meeting Bobulinski had with Mark Meadows.

I can recall that agents on the investigative team brought up on multiple occasions to the assigned prosecutors that they wanted to do an interview of Bobulinski with the assigned case agents. I can recall being told that they would think about it and then ultimately being told there was no need for the team to interview Bobulinski and that Bobulinski was not viewed as a credible witness.

In his House testimony, Bobulinski backed off all the most inflammatory claims — such as that he attended a key meeting in Miami and witnessed Hunter receive a large diamond as a gift –made to the FBI.

Republicans in Congress have repeatedly complained that Tim Thibault shut down Peter Schweizer as a confidential human source in September 2020. Thibault explained to Congress that the Supervisory Special Agent called him and asked him to stop sending Schweizer’s reporting, because doing so would give Hunter’s attorneys ammunition if the case ever went to trial.

A I understand you don’t need the reporting anymore. I understand that if this goes to trial, Hunter Biden’s attorney —

Q Uh-huh?

A — could have some ammunition.

And Shapley specifically complained that Lesley Wolf withheld a particular email about some anomalies in the the hard drive image obtained from John Paul Mac Isaac.

Prosecutors deliberately withheld that email from agents who might have to testify to avoid making it Jencks production that would have to be shared with Hunter’s lawyers. Thanks to Shapley, it will presumably play a role in any suppression and Brady complaints tied to the laptop.

None of this is particularly noble on Wolf’s part. It’s typical, among prosecutors, in that they watch out for any evidence that would harm a case at trial, and avoid ingesting it in ways that would give defendants access to it. Lesley Wolf was not withholding details about problems with the hard drive JPMI provided the FBI to protect Hunter Biden. She was doing it to protect her case. In fact, her treatment of the laptop may be the one thing that helps bollox the case, if Leo Wise ends up needing any assistance on that front.

But it seems quite clear that efforts Wolf made to preserve a case for trial were instead spun by the disgruntled IRS agents as attempts to thwart the investigation. Their efforts to sell that spin have not only endangered the case, but also resulted in death threats targeting Wolf and her family.

Particularly given the timing of Congress’ focus on the FD-1023, including Bill Barr’s public commentary, Alexander Smirnov’s attempt to frame Biden is an important example of an effort Wolf made to protect a viable case against Hunter.

Gary Shapley released a memo that will be central to Hunter Biden’s bid to obtain discovery on the treatment of the Smirnov tip and the Scott Brady back channel, generally. It shows that the FD-1023, “was ordered to be received by this prosecution team by [Richard Donoghue]. It is happening on 10/23/2020 at 3pm in the Delaware FBI office.” It is proof that days after Trump yelled at Barr about the Hunter Biden investigation, DOJ ordered Wolf to accept this briefing.

Yet in his testimony, Shapley said that “We never discussed the form,” seemingly a reference to the Smirnov allegation.

After Barr ran his mouth to Margot Cleveland, both Ziegler and Shapley submitted supplements complaining that they hadn’t gotten briefed on the allegation. Shapley’s testimony, that neither the IRS agents nor the FBI agents, had checked out the allegation seems inconsistent with his claim never to have spoken about it.

Neither I nor the line IRS-CI agents acting under my supervision, nor the FBI agents working with IRS-CI, were ever provided the CHS information that Attorney General Barr recently referenced was sent to Delaware to have it “checked out.” Prosecutors never provided such information to IRS-CI. As such, neither IRS-CI nor the FBI agents working with him were provided the opportunity to conduct proper investigation into the allegations presented by this CHS. I, long with other IRS-Cl investigators, requested 10 be apart of briefings that the Delaware USAO and DOJ were having with the Pittsburgh USAO during the investigation, but our requests were denied.

Both further elaborated their complaints about not getting access to the FD-1023 in their public July testimony.

Then, even more forthcoming testimony Shapley gave to House Ways and Means served as a cue during Scott Brady’s House Judiciary Committee testimony, in which Brady described Lesley Wolf’s skepticism about the material being funneled from Brady’s office.

Q And were you ever told that the Delaware U.S. Attorney’s Office did not want a briefing from your office?

A I believe I was. I don’t remember. But I know that we had trouble scheduling it.

Q Okay. And then, further down, it states AUSA Wolf’s comments made clear she did not want to cooperate with the Pittsburgh USAO, and that she had already concluded no information from that office could be credible stating her belief that it all came from Rudy Giuliani.

Were you ever made aware of Ms. Wolf’s processing and decisions regarding this briefing, and why she didn’t want the briefing?

A I was not. We did, however, make it clear that some of the information including this 1023 did not come from Mr. Giuliani.

Q And did your team ever tell you that they were receiving comments from Ms. Wolf that she didn’t find the information your office was receiving credible?

A I don’t remember that, no.

Q If those conversations took place, would those have been between a AUSA at your office and Ms. Wolf?

A If they would have shared that with us at all, yes, likely, and had I been made aware, I would have called Mr. Weiss directly.

Q When you would have called Mr. Weiss directly, would you have told him the information the 1023 wasn’t coming from Mr. Giuliani, is that accurate?

A Yes, I would have, and that was already communicated to their office, that the 1023 was from a credible CHS that had a history with the FBI, and that it was not derived from any of the information from Mr. Giuliani.

Side note: The publicly released HJC transcript redacts several references to David Weiss, perhaps in an effort to hide the degree to which he is a witness to and therefore hopelessly conflicted on the Smirnov prosecution.

I’m guessing that neither Smirnov nor Hunter’s attorneys are so stupid that they can’t figure out who is named behind that redaction! But if they have any questions: Yes, Jim Jordan’s people really did redact references that make it clear what David Weiss personally witnessed in this transcript!

Unsurprisingly, in her testimony, Lesley Wolf did a far, far better job than Shapley and Brady adhering to her ethical duty to avoid speaking of an ongoing investigation. She also suggestsed that a lot of the decisions that Shapley and Ziegler complained about were made for ethical reasons, even an unwillingness on her part to risk her law license to take more aggressive steps. “Hey, I like my law license, and I know this person has a lawyer, so we’re going to have to work through counsel to get that interview you want,” she characterized such discussions with the investigators.

As a result of her strict adherence to prohibitions on her speaking about the investigation, her explanation for her reluctance to accept information from Brady’s side channel was very general. In her general explanation for why she might want to keep the existing Hunter Biden investigation separate from whatever Brady was doing, though, she provided the same reason Thibault got explaining why Delaware didn’t want to receive tips involving Peter Schweizer.

Q And during the course of your career, have you ever had a situation where you were reluctant to cooperate with a different U.S. Attorney’s Office? And by cooperate, I mean have meetings, take telephone calls.

[Wolf attorney Jenny] Kramer. I know this is almost too formal for this process, but I’m going to object to form. What does that mean, unwilling to cooperate? I’m just not clear on what exactly you’re trying to ask.

Mr. Castor. Unwilling to take meetings?

Ms. Kramer. Generally?

Mr. Castor. With a different U.S. Attorney’s Office.

Ms. Wolf. I can answer those questions, generally.

BY MR. CASTOR:

Q Sure, sure.

A I think as a general matter, the idea would be that you are coming from a place of cooperation and the common mission of the Department of Justice and what it is you’re trying to accomplish. But there may well be very, very valid means, reasons for a desire and an interest to keep investigations separate and apart. And in those circumstances, you would — and it wouldn’t be unusual to say, you know what, we’re not going to need to share information, we’re not going to do this. And it would just depend, again, on the particulars of an investigation and what the needs and what the various interests were at play.

Q Okay. Are you familiar with Supervisory Special Agent Gary Shapley’s testimony where he indicated you were unwilling to interact with Scott Brady?

A I’m generally familiar with Special Agent Shapley’s testimony, yes.

Q Okay. Are you familiar with that particular aspect of it?

A I mean, I’ve read his testimony.

Chairman Jordan. Would there be a reason not to interact and meet with Mr. Brady and his team?

Ms. Wolf. As that relates to a particular investigation, I’m not authorized to speak to that.

Chairman Jordan. You said there were some situations that — the general way of doing things is to, you know, “cooperate,” I think, is the word you used. And you said there are times that we’re not going to do that. Why would there be a reason not to do it in this situation?

Ms. Kramer. Chairman, respectfully, I think you had left the room when I had asked Mr. Castor earlier, please allow Ms. Wolf to finish her answers to the questions before —

Chairman Jordan. Okay, sure. I apologize.

Ms. Kramer. — and me as well, number one. And number two, I believe you mischaracterized her very recent answer. I don’t believe you said that there were times that you would refuse to cooperate, unless I misheard. So let’s break that down. I think your first question, Chairman Jordan, is what again, if you don’t mind repeating it?

Chairman Jordan. Would there be a reason not to cooperate with Mr. Brady’s office?

Ms. Wolf. As to this particular case, I’m not authorized to speak to that.

As a general matter, and I think to potentially recast and just reframe, the infusion on the point, there are valid investigative reasons in any given case that would need to be evaluated before joining, overlapping, even taking in information, and that would all be factored in, in any case, to deciding how to move forward in a matter, all in the spirit of advancing and the best interest of the investigation.

[snip]

You know, to the extent that it then subsequently touches on an investigation or a matter in your district, I would expect that would be something that you would be aware of and usually the kind of thing that would probably take place above the line level. And that’s part of, you know, a sort of lack of clarity or understanding on how this sort of what is and isn’t typical. I hesitate to answer. And, quite frankly, I think in answering whether this was typical or atypical, it runs afoul of what I am authorized to discuss, because it essentially acknowledges or will be interpreted as acknowledging or denying or endorsing what may or may not have happened.

Wolf is being coy here.

But she’s also making it clear that she decided sharing information with Brady’s project would harm the investigation.

This is why I posted Leo Wise’s repeated, defensive rebuttals to David Chesnoff’s claim that the Smirnov indictment was “makeweight.”

It seems clear that Lesley Wolf left the Smirnov allegation well enough alone, knowing that the project generally was producing garbage that could only endanger the case.

Leo Wise seemingly used the Smirnov allegation as an excuse to reopen the case against the President’s son, only to discover it opened a nasty can of worms. It gave Abbe Lowell the evidence to prove that the prosecution of Hunter Biden was infected by an effort by the Attorney General to accommodate the dirt that Trump’s lawyers picked up from Russian spies. And it gave Wise a real headache of a prosecution to deal with.

Lesley Wolf probably didn’t decline all the garbage from Scott Brady for noble reasons. She was just protecting her case. But having made the opposite decision, Wise may end up blowing that case.

You know who is vindicated by the Alexander Smirnov indictment? Lesley Wolf.

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

February 4, 2024/44 Comments/in 2020 Presidential Election, 2024 Presidential Election, Hunter Biden /by emptywheel

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A Second Trump Term Would Replace Competent Corrupt People with Incompetent Ones

January 25, 2024/34 Comments/in 2020 Presidential Election, 2024 Presidential Election, Mueller Probe /by emptywheel

Steve Neukam is one of the Messenger scribes who often chases Dick Pics with little care for the actual evidence.

In the middle of a paragraph quoting an anonymous Republican saying that Republicans don’t even need direct financial ties to Joe Biden to impeach him, for example, Neukam treats the factual explanation that Republicans are trying to impeach Joe Biden based on loans he made to his family while a private citizen as a brush-off.

The source close to Trump also said Comer “set the bar too high” for an impeachable offense, attempting to prove a direct payment to Joe Biden in the probe. The investigation spent weeks rolling out payments to Joe Biden from Hunter Biden and James Biden, the president’s son and brother, which the White House and Biden allies brushed off as loan repayments. Proving a direct payment to the president, the source said, was not necessary. [my emphasis]

But by being a committed Dick Pic Sniffer, Neukam has hit paydirt with a story quoting a slew of MAGAts trying to blame James Comer, and James Comer exclusively, that Republicans haven’t even succeeded in the single thing they tried to do with their House majority last year: Impeach Joe Biden.

Comer has led a”clueless investigation” at best and — at worst — “a disaster.”

“It’s been a parade of embarrassments.”

[snip]

“James Comer continues to embarrass himself and House Republicans. He screws up over and over and over,” the source said. “I don’t know how Republicans actually impeach the president based on his clueless investigation and lack of leadership.”

[snip]

“It seems like they got played by Hunter Biden,” one senior House GOP aide said. “It was a disaster. They looked like buffoons.”

Behind these hilarious quotes, however, is a particular power structure, one that is actually far more telling than the quotes.

The same article that claims that Comer’s problem is that he was picked because of his fundraising prowess…

“This is why we shouldn’t pick our chairman based on how much money they raise,” another member told Moskowitz, according to the congressman.

… Has these two deliciously contradictory claims about Mike Johnson’s impotence, a Speaker picked in spite of his non-existing fundraising record.

The Republican lawmaker who took his complaints of Comer to the speaker’s office was told that Johnson is aware of the problem, agrees with the criticism but can’t really do much other than watch and shake his head, the lawmaker told The Messenger.

[snip]

Top House Republicans stand next to Comer amid the intra-party criticism. Johnson told The Messenger that he is “fully supportive” of the chairman’s work.

“I am grateful for the superb efforts of Chairman Comer,” the speaker said in a statement to The Messenger. “Without his and the other investigators’ work, we wouldn’t have uncovered the millions in foreign funds going to the Biden family, the dozens of exchanges between the President and Hunter Biden’s clients, and the litany of lies the White House has told.”

Meanwhile, at least some of the people griping are people close to Trump venting because the House GOP hasn’t delivered on Trump’s demands.

Twice-impeached Trump himself threatened House Republicans in August to impeach Biden “or fade into OBLIVION.”

[snip]

“You have to start producing,” a Trump ally said. “The base is starting to get more and more frustrated with him because they see all this smoke but they don’t see the movement.”

It is virtually certain that many of the Republicans quoted here (with the possible exception of Jim Jordan’s chief counsel Steve Castor) suffer from the very same problems James Comer has faced in this investigation. They’re incompetent. They exist in a Fox/Newsmax bubble that rewards feral loyalty, incompetence, and lies. When exposed to any real scrutiny, those lies crumble.

You won’t find them reflecting on whether their own false claims have contributed to the hilarity of Comer’s failures. Amid increasing concerns that Republicans will lose the House in November, they’re busy passing the blame, even while they ignore an even bigger underlying problem.

One reason this impeachment has failed, thus far, is because they’re pursuing impeachment for the sake of impeachment. One reason this impeachment has failed, thus far, is because the House GOP has dedicated their entire first year to delivering whatever Trump demanded, when he demanded it, irrespective of whether it served their own interests or was justified by anything but Trump’s petulant demands.

Of course, none of the Republicans quoted here (Neukam also relies on Jared Moskowitz’s second-hand claims about what Republicans have told him) would admit they’re no different than Comer. They could do no better.

The Republicans on these committees have, like Comer, gleefully made false claims about smoking guns for which they had no evidence, for example. These Republicans continue to chase every one of Comer’s new diversions, in hope somewhere there’ll be evidence.

This is the persistent problem with claims — renewed today from the NYT team — that Trump will use DOJ to pursue partisan retribution.

[Maggie] He and his allies have also been clear that a big agenda item is eroding the Justice Department’s independence.

Charlie: Yes, Trump has vowed to use his power over the Justice Department to turn it into an instrument of vengeance against his political adversaries. This would end the post-Watergate norm that the department carries out criminal investigations independently of White House political control, and it would be a big deal for American-style democracy.

He already did this!!! No matter how many times NYT claims this would be a new development, none of it can eliminate the evidence that Trump’s focus on retribution began when he ordered investigations into Hillary and John Kerry under Jeff Sessions and accelerated as Bill Barr tried to find ways to charge Hillary and other Democrats for Trump’s efforts to cozy up to Russia. These efforts continue, with wild success, as Trump’s demands for a Hunter Biden investigation finally bore fruit.

As people consider the dangers of a second Trump term — and make no mistake, it could end American democracy — they need to consider whether incompetent corrupt partisans like James Comer will be any more effective than what Bill Barr already tried. Hell, under Barr, DOJ altered evidence to attempt to implicate Joe Biden in Trump’s corruption. John Durham fabricated a claim to impugn Hillary, but still couldn’t make charges against her attorney stick.

The difference — the one place where Comer, and to a much greater degree, Jim Jordan — have succeeded where Barr did not is not in the quasi-legal outcome. Rather, it is in ginning up threats against — seemingly — every single adverse witness.

The incompetent corrupt people that Trump is relying on while disavowing his past competent agents of retribution are really really good at one thing: Sowing political violence. But it’s not clear they’d be any better at politicizing DOJ than Trump already managed.

For Almost a Year, “Jim Jordan” Has Been Saying Hunter Biden Didn’t Need to Testify

January 16, 2024/28 Comments/in 2020 Presidential Election, 2024 Presidential Election, Hunter Biden /by emptywheel

I came to the Hunter Biden beat a bit late — only after I read Gary Shapley’s testimony. And so when Democrats mentioned that Abbe Lowell had sent Congress six letters in last week’s circus hearing — only two of which were cited in the contempt referral — I realized I hadn’t read them all.

I posted them all below.

It turns out, the two earliest ones — the ones I hadn’t read, ones which were sent to James Comer but not Jim Jordan — Abbe Lowell cited Jordan to lay out the impropriety of the requests for information from Hunter.

We know, from the Steve Bannon prosecution, that were the House to refer Hunter Biden for contempt, the first thing DOJ would do is ask for paperwork from both sides. On the January 6 Committee side, that all went through senior staffers. On Bannon’s side, Robert Costello claimed to have certain representations from Trump, but when asked, he admitted he didn’t have anything to backup that claim (Peter Navarro had still less since he didn’t lawyer up until after being charged). DOJ went so far as to get Costello’s call records to make sure there weren’t communications they didn’t know about.

Here, the first thing Abbe Lowell would do if Hunter were referred to contempt would be to share the six letters he had sent, documenting the authority on which he was relying for asking for further accommodations. The Oversight contempt referral — and even the letter issued Sunday moving toward setting up a deposition — made no mention of the earlier letters. As I noted, when DOJ asked the staffers in charge of the contempt referral what had happened, that hapless person would have to explain why the Committee withheld relevant documents from its contempt referral.

But as I also noted, even when relying on just the more recent letter, Jordan has said enough about the authority of subpoenas that he risked being a witness in any contempt investigation and then trial, something Bennie Thompson studiously avoided by letting staffers manage the guts of the legal issues.

That may explain why Jordan, whose chief counsel Steve Castor is bad faith but a good lawyer, saw the wisdom of issuing a new subpoena.

There’s still a conflict here. Lowell suggested hybrid accommodation in his letter from last week.

You have not explained why you are not interested in transparency and having the American people witness the full and complete testimony of Mr. Biden at a public hearing. If you issue a new proper subpoena, now that there is a duly authorized impeachment inquiry, Mr. Biden will comply for a hearing or deposition. 33 We will accept such a subpoena on Mr. Biden’s behalf.

33 During the January 10, 2024, Judiciary Committee markup, Representative Glenn Ivey suggested a procedure for a hybrid process—a public deposition/hearing with alternating rounds of questions for Republicans and Democrats, and with similar rules (e.g., role of counsel in questioning), as is done in a closed-door deposition. Four Republicans actually voted in committee in support of this process. Perhaps that could be the basis for our discussion.

In Sunday’s letter, Jordan and Comer rejected that, falsely claiming that the rules prohibit it (and ignoring Comer’s offer of public testimony in the past, something that came up in the contempt hearing).

While we welcome Mr. Biden’s public testimony at the appropriate time, he must appear for a deposition that conforms to the House Rules and the rules and practices of the Committees, just like every other witness before the Committees.26

26 For this reason, the Committees cannot accept the so-called “hybrid process” you propose. See January 12 Letter, supra note 1, at 8 n.33

I would not be surprised if Lowell did what Jim Comey did back in 2018, when House Republicans were conducting a similarly politicized non-public investigation into the Russian investigation. He sued to quash the subpoena, largely in an attempt to get some means of preventing Members from making false claims while hiding the transcript. That ended with an agreement that the House would release the transcript a day after the testimony.

The letter Lowell sent Mike Johnson on November 8 already extensively documented the false claims that Republicans had made about Hunter. There are some interesting false claims in the HJC report on the Hunter investigation that would not only further substantiate the need for transparency, but would also bolster Hunter’s claim — made in a motion to dismiss — that the House is unconstitutionally trying to conduct a prosecution of him.

Plus, there are other details of Jordan’s investigation — most notably the threats, which Becca Balint laid out during the contempt hearing last week. It is absolutely critical to Hunter Biden’s legal case that US Attorneys David Weiss and Martin Estrada as well as FBI Special Agent in Charge Thomas Sobocinski testified that threats were made in conjunction with this investigation, threats that in Delaware’s case preceded a radical reversal on the prosecutorial decision. Yet Jordan is sitting on that testimony.

Most people, myself included, think it’d be insane for someone fighting two indictments to appear before a hostile committee, much less without some means of acquiring his own record. But at the same time, Jordan keeps providing Lowell more evidence that the House, not DOJ, is the branch of government driving that prosecution.

1. February 9, 2023: Re request for documents [Comer]

[T]hen Ranking Member Jim Jordan (who sat next to you at your February 8th hearing) stated that a subpoena of President Trump and his family’s personal records was “an unprecedented abuse of the Committee’s subpoena authority[.]”1 Mr. Jordan described the subpoena for financial and business records as an “irresponsible and gravely dangerous course of conduct in a singular obsession of attacking President Trump and his family for political gain.”2 Mr. Jordan feared that Chairman Cummings would selectively release information gained from the subpoena “in a misleading fashion to create a false narrative for partisan political gain.”3

[snip]

Representative Jordan, citing Watkins, even emphasized that private persons have a limited place in Committee investigations: “[t]he Supreme Court has cautioned that Congress does not have ‘general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress.’”4

2. June 14, 2023: Re records from art dealer Georges Bergès [Comer]

I am sure you will remember that it was now Judiciary Chairman Jim Jordan, in his hollering about the subpoena issued to the Presidents’ accounting firm, citing to the same Waikins case, who stated that private persons have a limited place in Committee investigations: “[t]he Supreme Court has cautioned that Congress does not have ‘general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress. ™

[snip]

Let me remind you what then-Ranking Member Jim Jordan stated: that a subpoena of President Trump and his family’s personal records was “an unprecedented abuse of the Committee’s subpoena authority[.]”* (emphasis added). Mr. Jordan described the subpoena for financial and business records as an “irresponsible and gravely dangerous course of conduct in a singular obsession of attacking President Trump and his family for political gain.” (emphasis added). 1 explained in February that Mr. Jordan stated he feared that Chairman Elijah Cummings ‘would selectively release information gained from the subpoena “in a misleading fashion to create a false narrative for partisan political gain.”

[snip]

No sooner did You obtain these financial records then, as admitted in you letter, you released them to the public in your “First Bank Records Memorandum.” In so doing, you decided to ignore the warning of your colleague Chairman Jordan, who cautioned that Democrats would selectively release information gained from the subpoena “in a misleading fashion to create a false namative for partisan political gain.” Oh, what a difference a few years and a change in leadership has made.

3. September 13, 2023: Re Newsmax appearance [Comer]

I write on behalf of our client regarding your statement this morning, September 13, on Newsmax, in which you stated, “We’re headed to court, more than likely. We’ve requested bank records from Hunter Biden and Jim Biden early on, and obviously we never got a response back. We will re-request those this week; if they do not comply with our request, then we will subpoena and no doubt, undoubtedly head to court.”1 Your statement was surprising as it ignores our prior exchanges.

[snip]

We ask that you correct what you said, but more importantly, we remain available to have the discussion that I suggested some seven months ago.

4. November 8, 2023, to Mike Johnson: On false claims made by Republicans [Comer, Jordan, and Smith]

Chairman Jordan, for his part, used his airtime on November 1 to spew false, recycled, and debunked claims about Hunter’s time serving on the board of directors of Burisma, wielding it as an excuse to justify his obsession with pursuing an “impeachment inquiry” into President Biden when he declared: “Hunter Biden gets put on the Board of Burisma, fact number one. Fact number two, he’s not qualified to be on the Board of Burisma. Fact number three, the head of Burisma asks Hunter Biden, ‘can you help us relieve the pressure we are under from the Ukrainian prosecutor?’ Fact number four, Joe Biden does just that.” 9

[snip]

As to Chairman Jordan’s made-up, nonsensical claim that “the head of Burisma ask[ed] Hunter Biden, ‘can you help us relieve the pressure we are under from the Ukrainian prosecutor?,’” I simply would ask Chairman Jordan: what evidence do you have and when is it coming? The answer is “none” and “never.” For all the hours, months, and years Chairman Jordan and others (e.g., Senators Grassley and Johnson) have spent trying to invent a scheme in which Hunter assisted Burisma in any illicit or inappropriate way to “relieve the pressure” stemming from a Ukrainian corruption investigation, while his father was Vice President, they have produced an alarmingly scant amount of proof to show for their claims. Opposite evidence abounds.

5. November 28, 2023: In response to Comer’s Newsmax appearance [Comer and Jordan]

Mr. Chairman, we take you up on your offer. Accordingly, our client will get right to it by agreeing to answer any pertinent and relevant question you or your colleagues might have, but— rather than subscribing to your cloaked, one-sided process—he will appear at a public Oversight and Accountability Committee hearing. To quote your November 8, 2023, letter accompanying the subpoena, “Given your client’s willingness to address this investigation publicly up to this point, we would expect him to be willing to testify before Congress.”6 He is, Mr. Chairman. A public proceeding would prevent selective leaks, manipulated transcripts, doctored exhibits, or one-sided press statements.

December 6, 2023: Public testimony [Comer and Jordan]

As indicated in my November 28, 2023, letter, Mr. Biden has offered to appear at a hearing on the December 13, 2023, date you have reserved, or another date this month, to answer any question pertinent and relevant to the subject matter stated in your November 8, 2023, letter. He is making this choice because the Committee has demonstrated time and again it uses closed-door sessions to manipulate, even distort, the facts and misinform the American public—a hearing would ensure transparency and truth in these proceeding

January 12, 2024: After contempt [Comer and Jordan]

And you, Chairman Jordan, during a House Republican leadership press conference immediately after the actual impeachment inquiry resolution vote finally occurred,stated: “I want you all to think about something. This morning, I was in an impeachment deposition, but then had to leave that to come to the floor for a vote on the rules for impeachment. That [] says it all about this entire process. And it is a sad day.” 11

[snip]

You noticed an impeachment deposition a month before an impeachment inquiry vote was held to authorize such a deposition. Astonishingly, the sequence of events was the same as 2019. Almost four years to the day that Speaker Pelosi made her statement authorizing impeachment-based subpoenas before a House resolution authorized them, it was now Speaker Kevin McCarthy who, despite criticizing his predecessor for trying to do the same thing, did the same thing. On September 12, 2023, Speaker McCarthy said: “These are allegations of abuse of power, obstruction, and corruption. And they warrant further investigation by the House of Representatives. That’s why today, I am directing our House committee to open a formal impeachment inquiry into President Joe Biden.” 12 Chairman Jordan, you should be similarly saddened by your own use of pre–impeachment inquiry subpoenas against Mr. Biden.

[snip]

Thus, “Resolution 660’s direction, however, was entirely prospective. . . . Accordingly, the pre-October 31 subpoenas, which had not been authorized by the House, continued to lack compulsory force.”19 As Resolution 660 was ineffective in 2019, so is Resolution 917 now. To quote you, Chairman Jordan, during the first impeachment of former President Trump, “[c]odifying a sham process halfway through doesn’t make it any less of a sham process.”

[snip]

Still further, on December 13, 2023, you issued a joint statement directly tying Mr. Biden’s subpoenasto the still yet-to-be-authorized impeachment inquiry: “Today, the House will vote on an impeachment inquiry resolution to strengthen our legal case in the courts as we face obstruction from the White House and witnesses. Today’s obstruction by Hunter Biden reinforces the need for a formal vote. President Biden and his family must be held accountable for their corruption and obstruction. And we will provide that to the American people.”27

Abbe Lowell Invites James Comer to Send a Valid Subpoena, Now That He Has Authority

January 12, 2024/26 Comments/in 2024 Presidential Election, Hunter Biden /by emptywheel

Hunter Biden attorney Abbe Lowell sent James Comer and Jim Jordan a letter today that has gotten all the journalists who treat James Comer as a credible human being confused.

Effectively, the letter says:

Whatever subpoenas you claim to have sent were invalid because you had no authority to issue an impeachment subpoena
Now that you have authority to issue an impeachment subpoena, if you issue one, Hunter is willing to appear at a hearing or sit for a deposition

Much of the rest of the 8-page letter is a legal discussion. There may come a time when a prosecutor or judge will weigh whether Abbe Lowell’s argument was sufficiently sound to mean that any contempt referral against Hunter Biden is garbage.

For the purposes of journalists who’ve believed that James Comer is a credible human being, though, this may be the most important detail: quoting Comer and Jordan asserting, on December 13, that the House needed to vote to authorize an impeachment inquiry “to strengthen our legal case” to subpoena Hunter Biden.

Still further, on December 13, 2023, you issued a joint statement directly tying Mr. Biden’s subpoenas to the still yet-to-be-authorized impeachment inquiry: “Today, the House will vote on an impeachment inquiry resolution to strengthen our legal case in the courts as we face obstruction from the White House and witnesses. Today’s obstruction by Hunter Biden reinforces the need for a formal vote. President Biden and his family must be held accountable for their corruption and obstruction. And we will provide that to the American people.”

If you believe James Comer is a credible human being, then you should take Comer at his word that until the House voted to authorize an impeachment inquiry on December 13, Comer and Jordan didn’t have a very good legal case to enforce an impeachment subpoena to Hunter Biden.

Abbe Lowell may well have had the better legal argument in any case. In his letter, he cites some of the earlier letters he sent that didn’t make the contempt referrals. Those earlier letters are quite central to the legal argument, and the fact that Oversight and Judiciary didn’t mention them in the contempt referrals is going to make things awkward for whatever staffer is going to have to testify about this contempt referral before prosecutors, much less a jury.

And Lowell cites things that Jordan has said himself about the standards for subpoenas. If Lowell is lucky, those past statements will give him a way to call Jordan to the stand, something Bennie Thompson avoided in both the Steve Bannon and Peter Navarro cases.

But for the purpose of journalists who treat James Comer as a credible human being, the important takeaway is this: If Lowell is right — or even if Lowell is just sufficiently right to keep Hunter out of jail for this — then it means everything that came up to this point involved Comer and Jordan deceiving you about what was going on; Comer and Jordan deceiving you, and you believing them, and misleading your readers or viewers about what was really going on.

All those stories about how Hunter Biden “defied” a subpoena? Retract them, or issue a correction and say, “my bad, there was no subpoena. Hunter wasn’t defying anyone.”

All those stories about Hunter refusing to respond to a subpoena requiring a non-public deposition? Retract those too, because there may be no valid subpoena. Up until there’s a clearly valid subpoena, Hunter had every right to seek accommodations, as others have. That’s probably why Lowell says that if Comer and Jordan issue a valid subpoena, Hunter may even be willing to sit for a closed door deposition. That is, it’s not the preference for publicity, it’s the deference to an actually legal subpoena.

You might even do a piece that says, “Wow. That was a really dumbass thing for Comer to do, to issue a subpoena that wasn’t legally valid, because he gave Hunter Biden two opportunities to make him look like a dumbass. If only I were savvy enough to understand that’s what was going on.”

Because, ultimately, if you’ve been treating Comer as if he is a credible human being, you’re not very savvy and you owe your readers an apology.

But, honestly, if you believed any of this was real, then you’re the dumbass. If you believe that Comer and Jordan really are concerned about influence peddling from family members of Presidents, you’re the dumbass. If you believe that Comer and Jordan are primarily interested in Hunter’s testimony, then you’re the dumbass. If you believe there was an accommodation that was going to meet Comer and Jordan’s demands, then you’re the dumbass — indeed, that’s surely why Comer retracted his generous offer to let Hunter testify in public.

There’s a some reason to believe that Comer and Jordan fucked up the accommodation process so badly because they want to ensure that DC USAO or David Weiss — whoever gets any contempt referral they send — decides this contempt referral is legally garbage. Because, they have already admitted in one of the few statements that has been true, they are only looking for something — anything!! — they can use to rationalize an impeachment.

The subpoena was designed, from the start, to fail. That’s because Comer and Jordan know you’re such a dumbass that when it does, you won’t report that the failure is their own damned fault.

Update: Comer and Jordan say they’ll issue a valid subpoena. Congratulations Hill reporters, you’ve spent three months chasing a con.

The David Weiss and Leo Wise Inconsistencies Left Out of Hunter Biden Arraignment Coverage

January 12, 2024/22 Comments/in 2024 Presidential Election, Hunter Biden /by emptywheel

In testimony given to the House Judiciary Committee on November 7, 2023, David Weiss told Steve Castor and then Jim Jordan that the investigation into Hunter Biden was continuing, even after the plea deal filed on June 20 (here’s Politico’s coverage).

Q One of the big questions I think a lot of our members have is that, as of last July, you know, heading into July 26th, you know, we saw the plea agreement and the pre-trial diversion agreement; you know, we thought this matter was coming to a close, and then it didn’t.

How do you address the fact that this was on the verge of being completely over and wrapped up on July 26th and then, boom, in August, you have to request Special Counsel status, now you’re standing up a whole new office, and we’ve got an investigation that could go on for some time?

A Yeah. I understand the question and the members’ curiosity.

Q Uh-huh.

A Because I’ve got ongoing litigation in Delaware, I’m not at liberty to discuss it. But —

Q Uh-huh.

A — I can say that at no time was it coming to a close. I think, as I stated in the one statement I made at the time —

Q Uh-huh.

A — the investigation was continuing. So it wasn’t ending there in any event.

Chairman Jordan. When the judge would’ve accepted the agreement, it wasn’t over?

Mr. Weiss. Our efforts were not concluded; that’s correct.

According to a declaration, made under penalty of perjury, submitted last month by former Hunter Biden attorney Chris Clark, that Weiss claim — made under penalty of prosecution — conflicts with what Weiss’ First AUSA Shannon Hanson told him on June 19, 2023.

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

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

I’ve seen no coverage of Hunter Biden’s arraignment from yesterday — not the decent stories from NYT and ABC and not the typically shoddy story from WaPo — that mentions this discrepancy. And yet even though most stories on the arraignment described that the plea deal fell apart last July, none reported that Clark claims Weiss’ office assured Hunter there was no ongoing investigation on June 19 but then claimed on June 20 that there was an ongoing investigation.

This is absolutely crucial background to ABC’s report of how the plea deal was discussed yesterday.

The parties also again discussed the failed plea deal that led to the tax indictment last month. At one point during the 30-minute hearing, an attorney for Hunter Biden stood to express frustration with the plea deal falling apart, saying “we had a resolution of this case in 2023 and then things happened.”

The government pushed back, saying: “pleas fall apart all the time.”

Plea deals fall apart all the time. But government lawyers do not tell defendants one thing in June and then tell members of Congress something entirely different in November, as Hunter’s team alleges occurred.

And there’s another discrepancy in what prosecutors are saying, something that underscores the ethical problem with the tax indictment against Hunter (and the shoddy reporting of many outlets, including WaPo).

On July 26, 2023, Leo Wise stood as an officer of the court and made this representation to Judge Maryanne Noreika.

Approximately a year-and-a-half later, on or about October 18th, 2021, a third party paid the Internal Revenue Service $955,800 to cover Biden’s self-assessed individual tax liability with interest and penalties for tax year 2017 and $956,632 to cover Biden’s self-assessed individual tax liability with interest and penalties for tax year 2018.

In addition, in or around February of 2020, Biden’s California accountants discovered that Biden’s 2016 Form 1040 had not been filed. The return was originally prepared in or around October 2017 and showed $15,520 in taxes due and owing. Though it was delivered to Biden at Biden’s office, this return was not filed with the Internal Revenue Service. After learning in 2020 that the Form 1040 for 2016 remained unfiled, Biden filed a Form 1040 on June 12, 2020. For tax year 2016, Biden reported $1,580,283 12 in total income and self-assessed tax due of $492,895, of which $447,234 was timely paid, leaving a balance due and owing of $45,661. Biden did not include a payment with this return. On or about October 18, 2021, this liability, plus accrued interest and penalties, was also fully paid by a third party.

Finally, after seeking an extension, Biden timely filed his 2019 Form 1040 on or about October 15th, 2020. He did not, however, pay his estimated tax due when filing for an extension as required by law. For tax year 2019, Biden reported $1,045,850 in total income and a self-assessed tax due and owing of $197,372. On October 18, 2021, this liability, plus accrued interest and penalties, was also fully paid by the same third party

[snip]

THE COURT: All right. In Exhibit 1, there are references to taxes paid by a third party on Mr. Biden’s behalf of $955,800, and $956,632, as well as $492,000 in 2016 and $197,000 for 2019. Just looking at 2017 and 2018 which are the subject of this case, those numbers add up to more than $1.9 million. Can you help me square that with the relevant conduct.

MR. WISE: So the amount that was paid by the third party includes significant penalties and interests which we have not included in the loss stipulation that’s in paragraph 5A. The paragraph 5A is the taxes and there is a dispute as to what the taxes were based on the business deductions and that’s something that the parties will address in their sentencing memorandum, but this number is loss without inclusion of the penalties and interest.

Nevertheless, the indictment signed by Leo Wise obtained on December 7 doesn’t mention that the taxes were paid.

Indeed, there’s no record that the grand jury ever learned that, while there’s still a dispute about 2018, the taxes have been paid, with penalties and interest.

This is what led dull-witted scribes like Devlin Barrett to state, as fact, that prosecutors alleged that Hunter failed to pay his taxes, even though their own stories claim to know what happened in July, when that very same prosecutor said Hunter did pay the taxes.

Federal prosecutors alleged in a 56-page indictment filed last month that Hunter Biden, who moved to Los Angeles in 2018, failed to pay at least $1.4 million in federal taxes from 2016 through 2019. The charges include failing to file and pay taxes, tax evasion and filing false tax returns. Three of the charges are felonies and six are misdemeanors.

And it also lies at the core of the debate over whether anyone normally would be charged for such a fact set. Which is why the conflict between what Leo Wise said in July and what Leo Wise said in December should be a central part of the story.

In June, at least according to Chris Clark, David Weiss’ top AUSA said there was no ongoing investigation. In November, under pressure from Congress, David Weiss said there was.

In July, Leo Wise said that (aside from the dispute about 2018), the taxes have been paid, with interest. In December, Leo Wise told a grand jury — along with credulous journalists — they had not been.

One cannot report, with certainty, on what has happened until you account for those two incompatible claims from Hunter Biden’s prosecutors. One cannot make any claims about how this will end up until one determines whether David Weiss lied to Congress or Chris Clark lied in his sworn declaration.

And yet none of that appeared in the arraignment coverage yesterday.