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

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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.

Judge Maryellen Noreika’s Unconstitutional Concerns about Unconstitutional Concerns

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On April 12, the same day that Judge Maryellen Noreika finally issued her opinions rejecting Hunter Biden’s motions to dismiss based on immunity and selective and vindictive prosecution, Hunter filed a notice of interlocutory appeal of all of Scarsi’s opinions. My Hunter Biden page has been updated to reflect these developments.

I think, but am not certain, that the notice of appeal came after Noreika released her opinions, and so might be a response to it.

It’s unclear what basis Lowell believes he has for an interlocutory appeal. At the initial appearance, Judge Scarsi had instructed Abbe Lowell to brief whether he could file such an appeal for the diversion agreement, which Lowell failed to do in his motions to dismiss. One possibility is that Lowell plans to argue that Delaware, as the first filed case, should have ruled first. He argued this in a February motion to continue the similar filings.

“[W]hen cases between the same parties raising the same issues are pending in two or more federal districts, the forum of the first-filed action should generally be favored.” Heieck v. Federal Signal Corp., 2019 WL 1883895, at *2 (C.D. Cal., Mar. 11, 2019). This approach maximizes judicial economy, avoids the possibility of inconsistent judgments, and minimizes any unnecessary burden on the two Courts’ or the parties’ resources.

If that’s the case, however, the facial similarity of the two diversion agreement opinions might doom an appeal that would be extremely unlikely to work anyway. Both judges ruled that because Probation did not sign the diversion agreement, it was not in place and so Hunter got no immunity from it. The rulings are not inconsistent on their key point (though are in other key ways).

That said, even though neither side formally called attention to Judge Scarsi’s rulings, Judge Noreika noted it in a really confusing footnote.

5 This Court recognizes that, relying largely on California and Ninth Circuit law, the judge overseeing tax charges brought against Defendant in the Central District of California decided that Probation’s approval is “a condition precedent to performance, not to formation,” and that the absence of Probation’s approval means that “performance of the Government’s agreement not to prosecute Defendant is not yet due.” United States v. Biden, No. 2:23-cr-00599-MCS-1, 2024 WL 1432468, at *8 & *10 (C.D. Cal. Apr. 1, 2024). Neither of those issues nor that law was raised by the parties before this Court.

I don’t know what “law” she’s referring to — possibly the Ninth Circuit precedent Scarsi relied on? If that’s the case, then she would be affirming precisely the problem Lowell pointed out: by relying on different precedents, Scarsi has created inconsistency in the judgments.

But she’s flat out wrong that the government’s arguments about whether Probation’s signature was a condition precedent to the formation or the performance of the diversion agreement; it was central to the government’s response.

Applying contract law principles, the approval of U.S. Probation was a condition precedent to the formation of the contract. “A condition may be either a condition precedent to the formation of a contract or a condition precedent to performance under an existing contract.” W & G Seaford Assocs. v. Eastern Shore Mkts., Inc., 714 F.Supp. 1336, 1340 (D.Del.1989) (citing J. Calamari & J. Perillo, Contracts § 11–5, at 440 (3d ed.1987)); Williston on Contracts §38.4. “In the former situations, the contract itself does not exist unless and until the condition occurs.” Id.; Willison on Contracts § 38.7.

There is a bigger difference between the two opinions, though: how they understand Probation’s decision not to sign the plea. As I’ve noted, Scarsi effectively rewrote one of the exhibits he relied on to claim that Probation was not part of revisions to the diversion agreement. As I’ll show, Noreika does not deny that Probation was a part of those revisions, but nevertheless, with no explanation, held that Probation didn’t approve the agreement.

And that’s important because Noreika doesn’t explain her own intervention in the approval of the diversion agreement, effectively intervening in a prosecutorial decision, a problem I pointed out in this post. Indeed, the opinion is consistent with Margaret Bray refusing to sign the diversion agreement because of some interaction Bray had with Judge Noreika before the hearing.

Before I explain why, let me emphasize, Hunter Biden is well and truly fucked. What I’m about to say is unlikely to matter, and if it does, it’s likely only to matter after two judges who seem predisposed against Hunter make evidentiary decisions that will increase the political cost of two trials, if and when juries convict Hunter, and after those same judges rule on whether Hunter can remain out on pretrial release pending the appeal of this mess, which Scarsi, especially, is unlikely to do. Worse still, after I laid out all the ways Judge Scarsi had made his own opinion vulnerable on appeal, he ruled against Abbe Lowell’s attempt to certify all the evidence Scarsi said had not come in properly. Scarsi is using procedural reasons to protect his own failures in his opinions. He’s entitled to do so; he’s the judge! So what I’m about to write does not change the fact that Joe Biden’s son is well and truly fucked.

Judge Noreika refashions her intervention in the plea hearing

In his omnibus ruling on Hunter’s motions to dismiss, Judge Scarsi only cited the plea hearing transcript six times, entirely focused on the end of the discussion (the Xs describe who is being quoted in the citation).

The parties submitted the Plea Agreement and the Diversion Agreement to United States District Judge Maryellen Noreika in advance of a scheduled July 26, 2023, Initial Appearance and Plea Hearing. (See Machala Decl. Ex. 1 (“Del. Hr’g Tr.”), ECF No. 25-2.) At the hearing, after questioning Defendant and the parties, the District Court Judge expressed concerns regarding both Defendant’s understanding of the scope of the immunity offered by the Diversion Agreement and the appropriateness of the District Court’s role in resolving disputes under the Diversion Agreement. (Del. Hr’g Tr. 103–08.) The District Court Judge asked the parties to rework the agreements and provide additional briefing regarding the appropriate role of the District Court in resolving disputes under the Diversion Agreement. (Id.) At the hearing, Defendant entered a plea of not guilty to the tax charges then pending in Delaware. (Id. at 109.)

[snip]

6 This observation begs a question regarding another provision, the parties’ agreement that the United States District Court for the District of Delaware would play an adjudicative role in any alleged material breach of the agreement by Defendant. (Diversion Agreement § II(14).) The judge overseeing the action in Delaware questioned whether it was appropriate for her to play this role. (Del. Hr’g Tr. 92–104.) The Court is uncertain as to whether the parties understood the Probation Officer also to have a role in approving the breach-adjudication plan in her capacity as an agent of the court. See 18 U.S.C. § 3602. But these issues need not be resolved to adjudicate the motion.

[snip]

On July 26, 2023, the district judge in Delaware deferred accepting Defendant’s plea so the parties could resolve concerns raised at the plea hearing. (See generally Del. Hr’g Tr. 108–09.)

By contrast, Judge Noreika cited her own hearing transcript 33 times: 24 times in her background section, four times in her sua sponte section deeming the extent of Hunter’s immunity uncertain, three times in a sua sponte section that intruded on the Executive’s prosecutorial function where she said it would be unconstitutional to intrude on the Executive’s prosecutorial function, and twice more in a section misrepresenting the focus of Hunter’s judicial estoppel argument. 21 of her citations were substantially to her own comments in the hearing.

The degree to which this opinion makes claims about what Noreika actually did at the plea hearing matters. Not only does Noreika fluff the nature of her own intervention, but her discussion left out critical discussion about the nature of approvals required for the diversion agreement (including but not limited to those marked in blue above). That includes five complaints about the fact that she was not asked to sign the diversion agreement and a key intervention in which she expressed an opinion on the scope of the authority for Margaret Bray to intervene in the diversion agreement.

Additionally, in one place, she misrepresented the transcript in a way that minimized her own intervention.

That is, Noreika used her own opinion to refashion the intervention she made in the plea hearing.

The last example — when she misrepresented the transcript — is instructive. As noted, though neither side made this argument, Noreika nevertheless spent 2.5 pages arguing that the scope of the immunity grant in the diversion agreement was not sufficiently clear to be contractually enforceable. In it, she claimed that the uncertainty over the scope of the immunity, and not her own intervention, was the only reason the plea collapsed, a claim she carries over to the selective and vindictive prosecution opinion.

Then, she declined to accept Chris Clark’s oral modification of the immunity provision to include just gun, tax, and drug crimes.

Pressing the parties on their respective understandings of what conduct was protected by the immunity from prosecution led to a collapse of the agreement in court. (D.I. 16 at 54:10-55:22).

Apparently acknowledging that the immunity provision as initially drafted was not sufficiently definite, the parties attempted to revise the scope of the immunity conferred by the Division Agreement orally at the July 2023 hearing. (See D.I. 16 at 57:19-24 (“I think there was some space between us and at this point, we are prepared to agree with the government that the scope of paragraph 15 relates to the specific areas of federal crimes that are discussed in the statement of facts which in general and broadly relate to gun possession, tax issues, and drug use.”)). The Court recognizes that Delaware law permits oral modifications to contracts even where the contract explicitly provides that modifications must be in signed writings, as the Diversion Agreement did here. (See D.I. 24, Ex. 1 ¶ 19 (“No future modifications of or additions to this Agreement, in whole or in part, shall be valid unless they are set forth in writing and signed by the United States, Biden and Biden’s counsel.”)). That being said, although the government asserted that that oral modification was binding (D.I. 16 at 89:9-14), the Court has never been presented with modified language to replace the immunity provision found in Paragraph 15. [my emphasis]

This is a nutty argument to begin with: Neither side is arguing that gun crimes were not included in the diversion immunity (to which elsewhere she limits her review); neither is even arguing there was uncertainty as to the application of immunity to tax and drug crimes. The only uncertainty pertained to FARA (and that only because — as Noreika herself described it, Leo Wise “revoked” a signed agreement).

This discussion is especially problematic because, elsewhere, she left out a crucial part of her own invitation to clarify the immunity language, which the opinion describes this way:

The Court also suggested that the parties clarify the scope of any immunity conferred by the immunity provision of the Diversion Agreement. (Id. at 105:16-22).

Noreika’s reference to the government’s assertion that Chris Clark orally modified the scope of immunity by agreeing to limit it to tax, guns, and drugs pertains to this comment from Leo Wise:

Obviously this paragraph has been orally modified by counsel for Mr. Biden and we would — I’m not going to attempt to paraphrase it. I don’t want to make the record muddy. The statement by counsel is obviously as Your Honor acknowledged a modification of this provision, and that we believe is binding.

Importantly, when Noreika invited the parties to clarify the diversion scope (claiming all the while she was not trying to tell the parties how to negotiate), she treated the Clark comment as having been orally modified.

you might, though I’m not trying to tell you how to negotiate the Diversion Agreement, you might fix that one paragraph that you have orally modified today.

At the hearing, Noreika treated the diversion scope as orally modified, but in this opinion she not only omits mention that she did so, but she suggests that because the parties didn’t modify the contract about prosecution declination to her liking, then it is not binding.

She’s claiming to have no role in the drafting process, and then she’s demanding changes in the contract that she already said had been adopted, a contract in which she repeatedly says would be unconstitutional for her to intervene.

The logistics of the asymmetric knowledge of Margaret Bray’s non signature

All this matters because of something else: Judge Noreika’s opinion exhibits knowledge of something to which she was not a witness. It arises from the logistics from that plea hearing.

As I noted, while claiming he was ruling on the diversion agreement as an unambiguous contract, Judge Scarsi nevertheless relied on extrinsic evidence — a declaration from AUSA Benjamin Wallace. Before Wallace submitted the declaration before Judge Scarsi, Wallace withdrew his appearance before Judge Noreika, in a letter signed as a Delaware AUSA reporting to US Attorney David Weiss, someone who is no longer before that docket.

Given that Wallace referred to final agreements four times as drafts in the declaration, it deserves close scrutiny.

In it, Wallace described that before Judge Noreika took the bench and while Chris Clark and Leo Wise were signing the plea agreement and diversion agreement on July 26, he told Margaret Bray that she could soon sign the diversion agreement. According to Wallace, she “expressly declined to sign the draft diversion agreement.”

3. Before the District Judge took the bench, the parties signed the draft plea agreement in No. 23-mj-274 and the draft diversion agreement in No. 23-cr-61. Leo J. Wise, Special Assistant United States Attorney, signed on behalf of the government. Mr. Biden and his attorney, Christopher J. Clark, signed on behalf of Mr. Biden.

4. While Mr. Biden, Mr. Clark, and Mr. Wise were signing the two agreements, I approached the Chief United States Probation Officer for the District of Delaware, Margaret M. Bray, to tell her that the draft diversion agreement would be ready for her signature shortly. Ms. Bray expressly declined to sign the draft diversion agreement.

In the Los Angeles motions hearing, Abbe Lowell suggested there was something funny about this timing and asked a more important question: Why the head of Probation was not the one submitting the declaration.

MR. LOWELL: It probably — well, it matters in the following way. If what was happening was questions were being raised, and that’s why she didn’t do it, or for any other reason, after she manifested her agreement in what she sent to the court on July 20th or what the Government said, then it probably doesn’t matter.

I don’t think it really matters why at that moment and when it doesn’t — when it happened. I’m just saying that I think the sequence of what happened on July the 26th is murky, at best.

And I’d like to have Ms. Bray be the one to give a declaration, not somebody else that talks about what happened and when it happened and why it happened. I was there, so it would be good if the person who did it, did it. But that’s not what they submitted.

But Noreika’s opinion makes it clear why the timing and substance matters — and why Margaret Bray, the person that both Noreika and Scarsi have ruled effectively vetoed this agreement by not signing it, should have been the one submitting a declaration.

Assuming Wallace’s description of the timing is correct — that this happened while Clark and Wise were busy signing the documents themselves and before Judge Noreika entered the courtroom — then it would create an asymmetry of knowledge among the participants in the hearing. Bray, who never spoke at the hearing, would know she had refused to sign. Wallace would know and therefore did know when he made his single comment at the hearing: agreeing that if the immunity language had been included in the plea agreement rather than the diversion agreement, it would change the rule under which Judge Noreika was reviewing the plea agreement.

THE COURT: And if it were included in the Memorandum of Plea Agreement, would that make this plea agreement one pursuant to Rule 11(c)(1)(A)?

MR. WALLACE: It would.

Did Wallace make this comment because of something Bray told him before the hearing? Importantly, Noreika relies on this assent to use her own uncertainty about the proper clause under which to consider the plea to replace authority to alter the diversion. That is, Noreika effectively used Wallace’s assent to suggest she had the authority to draft the diversion agreement. If he learned that Noreika had a concern about that clause from Bray, it would amount to an ex parte communication between the prosecution and the judge.

Over the course of the hearing — most notably, between the time Leo Wise made a comment about the limits of Probation’s involvement and the time when Wise said the diversion agreement would only go into effect after Bray signed it — Wallace could have shared that knowledge with the other prosecutors. That is, it is possible but uncertain whether prosecutors used this asymmetric knowledge to get out of the plea deal.

But Hunter Biden’s team would never know this occurred, which is consistent with Chris Clark’s repeated statements that he believed Probation had already approved the diversion, which Weiss’ team did not dispute.

And, because all this happened before she took the bench, Judge Noreika should not have known that Ms. Bray refused to sign it. She should not have known it, that is, unless she and Margaret Bray had discussions before the hearing about Bray not signing the agreement.

If they did, then Bray’s failure to sign the diversion agreement would effectively serve as a proxy disapproval from Judge Noreika. It would amount to Judge Noreika, who is neither a party to this agreement nor someone authorized to approve or disapprove it, vetoing the agreement by instructing Bray not to sign it.

Noreika exhibited knowledge of Bray’s lack of signature

There are three times in Noreika’s opinion where she exhibits some knowledge that Bray had not signed that diversion agreement before the hearing.

First, in her treatment of Hunter’s half-hearted attempt to claim that judicial estoppel prevents the prosecution from had not started yet, she described believing at the time and still believing that the government did not believe the diversion period started until Bray signed the agreement.

As the Court understood that statement at the time, the government’s position was that the diversion period did not begin to run until Probation’s approval was given – approval to be indicated by a signature on the Diversion Agreement itself. That is, the Diversion Agreement would not become effective until approval through signature was given. That continues to be the Court’s understanding today.

Having such a belief at the time would only make sense if she knew the diversion had not yet been signed and, given the logistics, that would seemingly require having known before Bray told Wallace she would not sign it.

In her section rejecting Hunter’s argument that by recommending Hunter for diversion on July 19 and then, along with the parties, tweaking the diversion agreement, Noreika offered no reason why she was unpersuaded that Bray had indicated her assent by participating in those changes, something about which her courtroom deputy received emails.

Defendant nevertheless suggests that Probation’s approval may be implied from the fact that Probation recommended pretrial diversion and suggested revisions to the proposed agreement before the July 2023 hearing. (D.I. 60 at 18-19). The Court disagrees. That Defendant was recommended as a candidate for a pretrial diversion program does not evidence Probation’s approval of the particular Diversion Agreement the parties ultimately proposed. Probation recommended that Defendant was of the type of criminal defendant who may be offered pretrial diversion and also recommended several conditions that Probation thought appropriate. (D.I. 60, Ex. S at Pages 8-9 of 9). That is fundamentally different than Probation approving the Diversion Agreement currently in dispute before the Court. And as to Probation’s purported assent to revisions to the Diversion Agreement (D.I. 60, Ex. T at Page 2 of 28), Defendant has failed to convince the Court that the actions described can or should take the place of a signature required by the final version of an agreement, particularly when the parties execute the signature page. Ultimately, the Court finds that Probation did not approve the Diversion Agreement. [my emphasis]

Importantly, Noreika does not address the scope via which Probation, having already approved the parts they would oversee, could reject this deal.

But the most important evidence that Judge Noreika knew of something during the hearing to which she was not a direct witness was a question she posed — invoking the first person plural — suggesting that Probation should not approve the deal.

THE COURT: All right. Now, I want to talk a little bit about this agreement not to prosecute. The agreement not to prosecute includes — is in the gun case, but it also includes crimes related to the tax case. So we looked through a bunch of diversion agreements that we have access to and we couldn’t find anything that had anything similar to that.

So let me first ask, do you have any precedent for agreeing not to prosecute crimes that have nothing to do with the case or the charges being diverted?

MR. WISE: I’m not aware of any, Your Honor.

THE COURT: Do you have any authority that says that that’s appropriate and that the probation officer should agree to that as terms, or the chief of probation should agree to that as terms of a Diversion Agreement?

MR. WISE: Your Honor, I believe that this is a bilateral agreement between the parties that the parties view in their best interest. I don’t believe that the role of probation would include weighing whether the benefit of the bargain is valid or not from the perspective of the United States or the Defendant. (46)

Not only did Noreika suggest that some collective “we” had been reviewing diversion agreements together, but she suggested Bray could still reject the deal based on the scope of David Weiss’ prosecutorial decision. She suggested Bray could dictate to Weiss how much he could include in a declination statement.

This is precisely the kind of usurpation of the Executive’s authority that Noreika said would be unconstitutional. Which was precisely Leo Wise’s response: he responded that Bray did not have the authority to opine that the parties had entered into a contract that did not sufficiently protect the interests of the United States.

Shortly after that exchange, Judge Noreika started complaining that she was not asked to sign the diversion agreement.

I think what I’m concerned about here is that you seem to be asking for the inclusion of the Court in this agreement, yet you’re telling me that I don’t have any role in it, and you’re leaving provisions of the plea agreement out and putting them into an agreement that you are not asking me to sign off on. (50)

[snip]

But then it would be a plea under Rule (c)(1)(A) if the provision that you have put in the Diversion Agreement which you do not have anyplace for me to sign and it is not in my purview under the statute to sign, you put that provision over there. So I am concerned that you’re taking provisions out of the agreement, of a plea agreement that would normally be in there. So can you — I don’t really understand why that is. (51)

[snip]

All right. Now I have reviewed the case law and I have reviewed the statute and I had understood that the decision to offer the defendant, any defendant a pretrial diversion rest squarely with the prosecutor and consistent with that, you all have told me repeatedly that’s a separate agreement, there is no place for me to sign off on it, and as I think I mentioned earlier, usually I don’t see those agreements. But you all did send it to me and as we’ve discussed, some of it seems like it could be relevant to the plea. (92)

[snip]

THE COURT: First it got my attention because you keep telling me that I have no role, I shouldn’t be reading this thing, I shouldn’t be concerned about what’s in these provisions, but you have agreed that I will do that, but you didn’t ask me for sign off, so do you have any precedent for that? (94)

[snip]

What’s funny to me is you put me right smack in the middle of the Diversion Agreement that I should have no role in, you plop meet [sic] right in there and then on the thing that I would normally have the ability to sign off on or look at in the context of a Plea Agreement, you just take it out and you say Your Honor, don’t pay any attention to that provision not to prosecute because we put it in an agreement that’s beyond your ability. (104)

The first two of these citations — the ones that precede Leo Wise’s “revocation” of the plea deal — are not mentioned in Noreika’s opinion. The other three are invoked several times in references to the transcript (including three of the references made by Judge Scarsi), but in none of those references does Noreika admit she was demanding the authority to sign off on the diversion agreement. 

The Court pressed the government on the propriety of requiring the Court to first determine whether Defendant had breached the Diversion Agreement before the government could bring charges – effectively making the Court a gatekeeper of prosecutorial discretion. (D.I. 16 at 92:22-95:17).

[snip]

The parties attempted to analogize the breach procedure to a violation of supervised release, but the Court was left with unanswered questions about the constitutionality of the breach provision, leaving open the possibility that the parties could modify the provision to address the Court’s concerns. (Id. at 102:5-106:2).

She presented these demands to sign off on the diversion agreement as the exact opposite of what they were: a concern that she would be usurping the role of prosecutors if the diversion went into effect, when in fact she was concerned that she wasn’t being given opportunity to veto prosecutors’ non-prosecution decision.

Notably, Judge Noreika mentions Chris Clark’s failure to object after Leo Wise (after such time as Wallace could have told him that Bray did not sign the diversion agreement) said the agreement would go into effect when Probation signed it.

4 Although not part of the Court’s decision, the Court finds it noteworthy that the government clearly stated at the hearing that “approval” meant “when the probation officer . . . signs it” and Defendant offered no objection or correction to this. (D.I. 16 at 83:13-17 & 90:13-15).

She doesn’t mention her own failure to correct Wise when he said she could sign the diversion agreement.

I think practically how this would work, Your Honor, is if Your Honor takes the plea and signs the Diversion Agreement which is what puts it into force as of today, and at some point in the future we were to bring charges that the Defendant thought were encompassed by the factual statement in the Diversion Agreement or the factual statement in the Plea Agreement, they could move to dismiss those charges on the grounds that we had contractually agreed not to bring charges encompassed within the factual statement of the Diversion Agreement or the factual statement of the tax charges.

This doesn’t prove that Judge Noreika asked Margaret Bray not to sign the diversion before Bray told Wallace she would not sign it. But it does show that Noreika thought one of the two of them, either she or Bray, should have the power to veto a prosecutorial decision.

And Judge Noreika refashions her intervention in the plea hearing to obscure that point.

Noreika shifts her demands for sign-off power

As noted, even in spite of her minute order that reflects she deferred agreement on both the plea agreement and the diversion agreement in which it would be unconstitutional for her to intervene, Noreika suggests that the plea fell apart only because of the dispute about immunity that started after she had already intervened in signing authority.

She does ultimately deal with her demands — in a section reserving veto authority over the diversion agreement based on her authority to dictate public policy to prosecutors!

In a truly astonishing section, Noreika applies contract law about a diversion she claims, with no basis, has been made part of the plea deal and uses it to claim she could veto a prosecutorial decision.

Contractual provisions that are against public policy are void. See Lincoln Nat. Life Ins. Co. v. Joseph Schlanger 2006 Ins. Tr., 28 A.3d 436, 441 (Del. 2011) (“[C]ontracts that offend public policy or harm the public are deemed void, as opposed to voidable.”). “[P]ublic policy may be determined from consideration of the federal and state constitutions, the laws, the decisions of the courts, and the course of administration.” Sann v. Renal Care Centers Corp., No. 94A-10-001, 1995 WL 161458, at *5 (Del. Super. Ct. Mar. 28, 1995). Embedded in the Diversion Agreement’s breach procedure is a judicial restriction of prosecutorial discretion that may run afoul of the separation of powers ensured by the Constitution. See, e.g., United States v. Nixon, 418 U.S. 683, 693 (1974) (“[T]he Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case . . . .”); United States v. Wright, 913 F.3d 364, 374 (3d Cir. 2019) (“[A] court’s power to preclude a prosecution is limited by the separation of powers and, specifically, the Executive’s law-enforcement and prosecutorial prerogative.”).

At the hearing in July 2023, the Court expressed concern over the breach provision of the Diversion Agreement and the role the parties were attempting to force onto the Court.8 (See D.I. 16 at 92:12-98:19). In the Court’s view, the parties were attempting to contractually place upon the Judicial Branch a threshold question that would constrain the prosecutorial discretion of the Executive Branch as to the current Defendant. As the government admitted, even if there were a breach, no charges could be pursued against Defendant without the Court first holding a hearing and making a determination that a breach had occurred. (Id. at 94:10-15). If the Court did not agree to follow the procedure, no charges could be pursued against Defendant. (Id. at 94:16-20). Mindful of the clear directive that prosecutorial discretion is exclusively the province of the Executive Branch, the Court was (and still is) troubled by this provision and its restraint of prosecutorial decisions. Although the parties suggested that they could modify this provision to address the Court’s concerns (id. at 103:18-22), no language was offered at the hearing or at any time later. And no legal defense of the Diversion Agreement’s breach provision has been provided to the Court – the deals fell apart before any supplemental briefing was received.

Even if the Court were to find the Diversion Agreement was approved by Probation as required and the scope of immunity granted sufficiently definite, the Court would still have questions as to the validity of this contract in light of the breach provision in Paragraph 14. To be clear, the Court is not deciding that the proposed breach provision of Paragraph 14 is (or is not) constitutional. Doing so is unnecessary given that the Diversion Agreement never went into effect. The Court simply notes that, if the Diversion Agreement had become effective, the concerns about the constitutionality of making this trial court a gatekeeper of prosecutorial discretion remain unanswered. And because there is no severability provision recited in the contract, more would be needed for the Court to be able to determine whether this provision could properly remain in the Diversion Agreement and whether the contract could survive should the Court find it unconstitutional or refuse to agree to serve as gatekeeper.

This entire opinion is rife with examples where Judge Noreika placed herself in a contract to which she was never a party, effectively dictating what David Weiss could include in a prosecutorial declination. But she claims she’s doing the opposite, not snooping into a contract that should only be before her for its immunity agreement, but instead protecting prosecutors’ ability to renege on a declination decision.

I will leave it to the lawyers to make sense of the legal claims here.

But there’s a procedural one that Noreika overlooks.

As noted here, Scarsi’s ruling that the diversion agreement remains binding on the parties conflicts with Noreika’s claim that the problem here is that no one briefed her to placate her complaints.

There are other places where Scarsi’s ruling and Noreika’s conflict — specifically about Probation’s involvement in revisions to the terms that Probation actually governs. But if Scarsi is right, than Noreika’s order withdrawing the briefing order was withdrawn improperly.

Leo Wise Has a Sex Worker [and Other False Statement] Problem

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It took a while to get a transcript for the motions hearing in Hunter Biden’s Los Angeles case. Now that I’ve read it, I want to revisit two claims Leo Wise made in the same blustery attack on Hunter Biden’s motion to dismiss for outrageous conduct.

His attack was a response to two things that Abbe Lowell said. First, Lowell claimed that the details included in the speaking indictment against Hunter Biden were precisely the details that Gary Shapley and Joseph Ziegler raised in their testimony and public comments, including lifestyle, luxury, drugs, escorts, and sex clubs.

Look in the indictment that you have on your desk.

Each one of the charges is exactly what those two agents said should happen.

What else did they say? They went on and they said, “And this is what he did as opposed to paying his taxes.” And they talked about all of his lifestyle, luxury, drugs, escorts, sex clubs, whatever they put in.

What happened? It’s exactly the phraseology that the special counsel put in, which is abhorrent. It doesn’t happen in pure government tax cases, where they go on for 36 pages, but that’s exactly what the agents demanded and said. So Walters is not just —

The other was that the IRS agents’ testimony set off a series of dominoes in May.

So what we know today is they did the causation. It was those two agents that started the domines. That’s what happened here.

They started in May to complain about what they say is done wrong in the case. The next thing, they’re on the airwaves. The next thing is members of Congress put them in their hearing. The next thing, they reveal what they were — said in the hearing, and release the transcripts wholesale, in the midst of those famous negotiations that were happening.

The next thing that happens is members of Congress complain about the June agreement. The next thing that happens is — while they’re still out there complaining, you know, in May, when they were removed from the case, they didn’t go home. They didn’t go work on some other case, or if they did, they had plenty of time to go on their publicity tour.

So then the next thing that happens is Chairman Smith of the Ways and Means Committee tries to intervene to squirrel the deal in Delaware. All that starts with these agents.

Here’s Wise’s response:

Well, they said, “Oh, they started the dominoes.” What dominoes? Where is the proof of any of that?

Other than insulting us, where is the proof that anything these two agents — who I couldn’t have picked out of a lineup — had anything to do with our decision-making?

The idea that every American knows this story, that’s absurd. I mean, the myopia of people that live in Washington, to think that everyone in America cares what Gary Shapley and — I don’t even know what Ziegler’s first name is — what Ziegler says. That’s not proof.

You know, he talks about, “Well, did the — where did the prosecutors get the concept of a speaking indictment?”

I’ve been a white-collar prosecutor for 18 years. I’ve been writing speaking indictments the entire time. We didn’t have to get the idea from Gary Shapley saying, “Oh, Biden — Biden was involved with drugs and escorts.”

Biden wrote about that in his book. I mean, we could read about it in the book. America can read about it in the book. You don’t have to watch some obscure pundit on some podcast I’ve never heard of talk about it

So, I mean, this is as weak, as factless as the vindictive selective motion was. This one is even worse, because here, they can’t even articulate a theory of causation. It’s just these guys are hyenas, baying at the moon, and that must have had something to do with us, and there’s simply no proof of it.

Wise does something he and Derek Hines have done over and over: Make up claims that Lowell has insulted them, when instead Lowell has insulted the Republicans targeting Hunter (in the Delaware hearing, Hines also falsely claimed that Lowell was trying to delay the trial).

Then, Wise totally reframes Lowell’s argument, shifting Lowell’s focus to things that happened in May to “our decision-making” that happened in December. That wasn’t what Lowell was arguing, at all.

There may be no proof that Gary Shapley and Joseph Ziegler had any influence on the decision to charge Hunter with precisely the crimes they demanded he be charged with. But as I’ve noted, the proof that they were the dominoes that started the reversal of David Weiss’ initial prosecution decision is in Thomas Sobocinski’s still-unreleased transcript, which describes how Shapley’s May appearances led to threats and stalking of the investigative team. There’s proof. It’s just that everyone is withholding it from Hunter.

Then, for good measure, Wise suggests that it would be myopic to suggest that the non-stop focus on Hunter Biden on Fox News has led people outside of DC to know who Hunter Biden is.

And then — this is the most amazing thing — Leo Wise claimed that, “America can read about it’ — a reference to both drugs and use of escorts — “in the book.”

Nope. There’s one mention of an escort (as a sex worker) in the book — but it’s a description of a way to get drugs. There’s lots of mention of clubs in the book, but not sex clubs. The indictment mentions strippers twice, but only as one of the kind of human detritus a junkie hangs out with.

thieves, junkies, petty dealers, over-the-hill strippers, con artists, and assorted hangers-on,

[snip]

my merry band of crooks, creeps, and outcasts

[snip]

An ant trail of dealers and their sidekicks rolled in and out,

[snip]

Their stripper girlfriends invited their girlfriends, who invited their boyfriends.

Nevertheless, Wise suggested he got his focus — and false suggestion that the women payments to whom Hunter allegedly wrote off improperly were sex workers –from Hunter’s book rather than Ziegler’s obsession with them (or watching Fox News or accessing public content attributed to the laptop).

Remember, Weiss’ team was so excited to include a payment to an exotic dancer in the indictment that they appear to have gotten the date wrong (as I suggested, this may mean that prosecutors didn’t do enough due diligence on what happened to Hunter’s Venmo account after two new devices accessed it in different cities at almost the same time).

Wise did so in a passage where he called Lowell’s motion “factless.” He did so in a hearing where he pounded the table, pretended to be a victim, and used the old “pound the table adage.”

And Judge Mark Scarsi appears to have adopted Weiss’ false claim about escorts being in the book when he said that, “Defendant himself brought notoriety to his conduct though the publication of a memoir.”

I get it: All three parties involved here have been caught making factual errors. Abbe Lowell claimed that public reports of the threats David Weiss faced were death threats and also misstated the timing of threats Trump made. Judge Scarsi claimed that an email said only the parties were involved in revising the diversion agreement, when the email in question said that Probation was involved. And Weiss’ team claimed sawdust is cocaine.

I get it. Much of Wise’s bluster is just totally banal prosecutorial dickishness. Leo Wise has been relying on prosecutorial dickishness for a very long time, at least since the prosecution of Joseph Nacchio bulldozed through Nacchio’s claim that he was prosecuted because he refused to let Qwest participate in Stellar Wind. It works! Especially with judges like Scarsi!

But this is the second time Weiss’ team has made a claim about Hunter’s memoir that was inaccurate (the other being a claim that the state of Hunter’s addiction in February 2019 after ketamine treatment exacerbated it was the state of his addiction when he purchased a gun in October 2018) even while arguing that the memoir is what distinguishes Hunter from other memoir writers like Roger Stone. That, along with the sawdust error and the belated warrant to search the laptop for materials supporting the gun crime raise real questions about what these prosecutors did do before obtaining these indictments. They don’t appear to have read the memoir, they don’t appear to have reviewed the actual laptop, they never indexed the laptop.

Abbe Lowell may not have proved his case that the IRS agents were the dominoes here. I don’t dispute Scarsi’s judgement that the standard here is incredibly high and Lowell didn’t meet it.

But if Weiss’ team didn’t get their sex worker obsession and errors from Ziegler and Shapley, the alternatives — given the evidence that they didn’t look where such evidence is known to be in hand — are actually worse. That is, it may well be they didn’t get their sex worker obsession from Ziegler. Does that mean they got it from Rudy Giuliani?

How Mark Scarsi Post Hoc Dismantled Abbe Lowell’s Juicy Timeline

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Update: The day I wrote this post, Judge Scarsi denied Abbe Lowell’s motion to supplement the record on procedural grounds. 

Aside from his opinion on the diversion agreement — which gets weirder and weirder the more I look at it — Judge Mark Scarsi’s denials of the seven other Hunter Biden motions to dismiss were totally in line with precedent and my own expectations of what Scarsi would do.

To each of what I called the technical motions to dismiss, Judge Scarsi left it to the jury to decide. Scarsi relied on prior rulings on past Special Counsel appointments to deem David Weiss’ appointment legal. And for the Selective and Vindictive claim and the Egregious Misconduct claim, Scarsi ruled that the standard for dismissal is extremely high and Hunter Biden didn’t reach it.

Ordinarily, no judge would be reversed by ruling in such a fashion. All of his decisions are the easy out based on precedent — the cautious approach.

But it’s on the last two — the ones where all Judge Scarsi had to say was that the standard was super high — where he may have provided surface area for attack on appeal.

This post got overly long so here’s a map.

First, I lay out how Judge Scarsi claims to be demanding a laudably rigorous standard of evidence and procedure. Then, I show how in one of his correct fact checks of Abbe Lowell, Scarsi ends up providing more focus on the threats David Weiss faced, while debunking that Weiss testified they were death threats; that’s a topic on which Leo Wise provided wildly misleading testimony. I next look at how Scarsi claims to adopt a standard on the influence the IRS leaks had throughout the period of the prosecution, but ultimately only reviews whether those leaks had an effect on the grand jury (the standard Weiss wanted that Scarsi said he did nto adopt). Then I lay out two 9th Circuit opinions via which Scarsi accuses Lowell’s timeline argument to be a post hoc argument. Finally, I show how even while Scarsi fact checks some of Lowell’s claims, elsewhere he arbitrarily changes the timeline or ignores key parts of it. This last bit is the most important part, though it builds on the earlier parts, so skip ahead and read that. Finally, I note that Abbe Lowell may have erred by failing to put details about the Alexander Smirnov before Judge Scarsi.

A laudably hard grader

Ironically, that surface area arises, in significant part, from Scarsi’s attempted attentiveness, which I hailed a few weeks ago when he offered David Weiss a chance to respond to concerns that he was arbitraging (my word) his SCO appointment.

Scarsi’s attentiveness carries over to this opinion.

Once upon a time I was known as a hard grader and so I genuinely appreciate Scarsi’s attention to detail. I think he raises a number of good points about Abbe Lowell’s failure to meet Scarsi’s insistence on procedural rigor and factuality.

On the first part, for example, many reporters had claimed that Scarsi scolded Lowell at the motions hearing that he had no evidence (I’m still working on getting a transcript from Scarsi’s court reporter).

As this opinion makes clear, that was, first and foremost, a comment on the fact that Lowell had not submitted a declaration to attest to the authenticity of his citations.

As the Court stated at the hearing, Defendant filed his motion without any evidence. The motion is remarkable in that it fails to include a single declaration, exhibit, or request for judicial notice. Instead, Defendant cites portions of various Internet news sources, social media posts, and legal blogs. These citations, however, are not evidence. To that end, the Court may deny the motion without further discussion. See Fed. R. Crim. P. 47(b) (allowing evidentiary support for motions by accompanying affidavit); see also C.D. Cal. R. 7-5(b) (requiring “[t]he evidence upon which the  moving party will rely in support of the motion” to be filed with the moving papers); C.D. Cal. Crim. R. 57-1 (applying local civil rules by analogy); cf. C.D. Cal. Crim. R. 12-1.1 (requiring a declaration to accompany a motion to suppress).

In at least one place, Scarsi even makes the same criticism of prosecutors, for not submitting the tolling agreements on which they relied with such a declaration.

This is a procedural comment, not an evidentiary one. It is a totally fair comment from a judge who, parties before him should understand, would insist on procedural regularity. He’s a hard grader.

That said, Scarsi’s claim that Lowell submitted no evidence is factually incorrect on one very significant point: In Lowell’s selective prosecution motion, he incorporated the declaration and exhibits included with the diversion agreement motion, which is cited several more times.

3 The extensive back-and-forth negotiation between the U.S. Attorney’s Office and Mr. Biden’s counsel regarding the prosecution’s decision to resolve all investigations of him is discussed in the declaration of Christopher Clark filed currently with Mr. Biden’s Motion to Dismiss for Immunity Conferred by His Diversion Agreement. (“Clark Decl.”)

So the record of the plea negotiations — an utterly central part of these disputes — did come in under the procedural standards Scarsi justifiably demanded. Even if you adopt Scarsi’s procedural demands, those records of how the plea deal happened are evidence before Scarsi.

Given Scarsi’s procedural complaint, though, it’s not entirely clear what the procedural status of this complaint is. As noted, Lowell did submit a declaration attesting to the authenticity of these documents before Scarsi unexpectedly ruled 16 days earlier than he said he would. Scarsi has not rejected it.

In any case, Scarsi described that he dug up and reviewed “all the cited Internet materials” Lowell cited himself and ruled based on that.

In light of the gravity of the issues raised by Defendant’s motion, however, the Court has taken on the task of reviewing all the cited Internet materials so that the Court can decide the motion without unduly prejudicing Defendant due to his procedural error.21

Having done that, though, Scarsi accuses Lowell of misrepresenting his cited sources.

21 However, Defendant mischaracterizes the content of several cited sources. The Court notes discrepancies where appropriate.

He’s not wrong! And honestly, this is the kind of fact checking I appreciate from Scarsi.

It’s the same ethic that led me to check Judge Scarsi’s claims about an exhibit that he misrepresented in his diversion agreement opinion, claiming that “the parties changed” the diversion agreement when in fact the exhibit said, “The parties and Probation have agreed to revisions to the diversion agreement,” arguably recording the agreement from Probation that, under Scarsi’s ruling, would trigger an obligation that prosecutors adhere to the immunity agreement he says is contractually binding.

It’s the same ethic that led me to check Judge Scarsi’s citation of Klamath v Patterson, only to discover he had truncated his citation, leaving out the bolded language below that would suggest this agreement is ambiguous and therefore should be interpreted in Hunter Biden’s favor.

The fact that the parties dispute a contract’s meaning does not establish that the contract is ambiguous; it is only ambiguous if reasonable people could find its terms susceptible to more than one interpretation. [my emphasis]

I genuinely do appreciate the fact that Scarsi tests the claims people make before him.

I do too.

The threats that at least five witnesses have described were real and likely incited by the IRS agents but may not have been death threats

One fact check of note that Scarsi raises, for example, pertains to Lowell’s citation of Politico’s coverage of David Weiss’ testimony, including the Special Counsel’s admission that he was concerned for the safety of his family. Scarsi notes that Politico doesn’t report, as Lowell claimed, that “Mr. Weiss reported he and others in his office faced death threats and feared for the ‘safety’ of his team and family.”

In a closed-door interview with Judicial Committee investigators in November 2023, Mr. Weiss reportedly acknowledged that “people working on the case have faced significant threats and harassment, and that family members of people in his office have been doxed.” Betsy Woodruff Swan, What Hunter Biden’s prosecutor told Congress: Takeaways from closed-door testimony of David Weiss, Politico (Nov. 10, 2023, 2:05 p.m.), https://www.politico.com/news/2023/11/10/ hunter-biden-special-counsel-takeaways-00126639.34

34 Although Mr. Weiss reportedly admitted “he is . . . concerned for his family’s safety,” Woodruff Swan, supra, this outlet did not report that Mr. Weiss “and others in his office faced death threats.” (Selective Prosecution Mot. 7.)

Scarsi is right. Those words, “death threats,” are not in the story. “Significant threats,” but not “death threats.”

Nor is it in Weiss’ still unreleased transcript, in which Weiss twice used the word “intimidated” when decrying such threats.

It’s not in Assistant Special Agent in Charge Ryeshia Holley’s testimony, where she described precautions taken for at least one of her FBI agents and for prosecutor Lesley Wolf after they were stalked and received comments of “a concerning nature.” It’s not in Lesley Wolf’s own testimony; rather, she described delaying her departure from DOJ because she believed she’d be safer if she remained a DOJ employee. Wolf also explained how her family had, “changed the way we do some things at home because of” the threats and stalking. A specific description of death threats is likewise not in the testimony of Los Angeles US Attorney Martin Estrada — effectively, a local colleague of Judge Scarsi — when he described working with the US Marshals because of “an uptick [of threats and hate mail] when the news came out in the spring regarding the Hunter Biden investigation,” including dozens of hate messages, some using the N-word and others using “certain derogatory terms reserved for Latinos.”

It’s not even in Ken Dilanian’s report (which Lowell did not cite), based off this congressional testimony as well independent reporting, describing how prosecutors and FBI agents have been the target of threats because they weren’t tough enough on Hunter Biden.

Prosecutors and FBI agents involved in the Hunter Biden investigation have been the targets of threats and harassment by people who think they haven’t been tough enough on the president’s son, according to government officials and congressional testimony obtained exclusively by NBC News.

It’s part of a dramatic uptick in threats against FBI agents that has coincided with attacks on the FBI and the Justice Department by congressional Republicans and former President Donald Trump, who have accused both agencies of participating in a conspiracy to subvert justice amid two federal indictments of Trump.

The threats have prompted the FBI to create a stand-alone unit to investigate and mitigate them, according to a previously unreleased transcript of congressional testimony.

None of these sources — and except for Dilanian, who has proven unreliable in the past, I’m working from official sources — mention death threats. Whether they mention influence from the IRS agents’ public campaign is a different issue.

Dilanian insinuated there was a tie between the threats against Wolf and the claims by Gary Shapley and Joseph Ziegler that Wolf “ma[de] decisions that appeared favorable to Biden.” US Attorney Estrada — Scarsi’s quasi colleague in Los Angeles — suggested a temporal tie, but didn’t mention the IRS agents.

As I’ve noted, though, Special Agent in Charge Thomas Sobocinski was more direct. When asked what he meant when he said that he and David Weiss had “both acknowledged that [Gary Shapley’s public comments were] there and that it would have had[,] it had an impact on our case,” Sobocinski described the effect to be the stalking of not just members of the investigative team, but also their family members.

None of this documented testimony described death threats. Scarsi is right on that point! The near unanimity that the prosecution team faced doxing and in some cases threats doesn’t describe the kind of threats, though US Marshals had to get involved on both coasts and some sources attribute those threats to the IRS agents, in Sobocinski’s case, explicitly.

That said, most of this documented testimony is unavailable to Hunter Biden’s lawyers, because Jim Jordan won’t release it, and because instead of sharing it, David Weiss sat in Scarsi’s own courtroom watching Leo Wise make claims about the impact of the IRS agents’ leaks that may be technically true as far as Wise’s experience (it’s not Leo Wise’s family being followed, presumably), but hides the impact on the prosecution team before Wise joined the team — the impact that Sobocinski described to Congress.

So I admire Judge Mark Scarsi for holding Abbe Lowell to the documentary record. As a former hard grader, I think such accuracy is important.

But Scarsi’s complaints about Lowell’s misrepresentation of the reported record about these threats also serve to highlight what David Weiss (and Jim Jordan) are withholding from Hunter Biden and his attorney, even while misleading Scarsi about it.

Incidentally but importantly, because Abbe Lowell relied on a NYPost story for the Estrada citation, he relied on a source that presented only part of what the LA US Attorney said about his team’s analysis of why they recommended against partnering with Weiss on a Hunter Biden prosecution, the part focusing on how resource-strapped he was and how there were many far more urgent crimes to prosecute in LA.

Estrada also said there was an evidentiary part of the discussion.

We only prosecute cases where we believe a Federal offense has been committed and where we believe there will be sufficient admissible evidence to prove a case beyond a reasonable doubt to an unbiased trier of fact.

But of course, that (plus the three underlying reports recommending against prosecution) are another thing Weiss has withheld.

Judge Scarsi adopts — then abandons — a standard on IRS leaks

Which leads me to one of three things that — on top of Scarsi’s miscitation of that exhibit recording involvement from probation in revising the diversion agreement and his truncation of a relevant precedent to give it the opposite meaning — I think may provide more surface area for attack on appeal.

It pertains to Judge Scarsi’s ruling on Hunter’s outrageous conduct motion, in which Abbe Lowell argued that the extended media campaign from the IRS agents had resulted in a grave due process violation.

Scarsi makes a big show of adopting a different standard than the one David Weiss — the guy who reportedly sat in Scarsi’s courtroom and saw Leo Wise make a claim that was not true as it applied to himself — advocated: that the charges themselves “result from” the outrageous government conduct at issue.

48 The Government advances a rule that “the defendant must show that the charges resulted from” the outrageous government conduct to show a due process violation. (Outrageous Conduct Opp’n 4–9.) Though the Government’s presentation is persuasive, the Court stops short of adopting that rule. It is true that courts often consider the doctrine in contexts where the defendant asserts the offending government conduct played a causal role in the commission, charge, or conviction of a crime. (Id. at 7–8 (summarizing Russell, 411 U.S. 423; Pedrin, 797 F.3d 792; United States v. Combs, 827 F.3d 790 (8th Cir. 2016); Stenberg, 803 F.2d 422; United States v. Garza-Juarez, 992 F.2d 896 (9th Cir. 1993); and Marshank, 777 F. Supp. 1507).) And the Government’s proposed rule aligns with the proposition that “the outrageous conduct defense is generally unavailable” where the crime is in progress or completed before the government gets involved. Stenberg, 803 F.2d at 429. But the Ninth Circuit teaches that there is no one-size-fits-all rule for application for the doctrine, see Black, 733 F.3d at 302 (“There is no bright line dictating when law enforcement conduct crosses the line between acceptable and outrageous, so every case must be resolved on its own particular facts.” (internal quotation marks omitted)), and nothing in the Supreme Court’s acknowledgment of the doctrine mandates that the offending misconduct play some causal role in the commission of the crime or the levying of charges, see Russell, 411 U.S. at 431–32. The Court takes the Second Circuit’s cue and leaves the door open to challenges based on “strategic leaks of grand jury evidence by law enforcement.” Walters, 910 F.3d at 28. [my emphasis]

Elsewhere, addressing a slightly different argument from Lowell, Scarsi describes that the standard is “substantially influenc[ing] the grand jury’s decision to indict, or if there is grave doubt the decision to indict was free from the substantial influence of such violations.” [my emphasis]

Exercise of supervisory authority to dismiss an indictment for wrongful disclosure of grand jury information is not appropriate unless the defendant can show prejudice. Walters, 910 F.3d at 22–23 (citing Bank of N.S., 487 U.S. at 254–55). In other words, “dismissal of the indictment is appropriate only if it is established that the violation substantially influenced the grand jury’s decision to indict, or if there is grave doubt that the decision to indict was free from the substantial influence of such violations.” Bank of N.S., 487 U.S. at 256 (internal quotation marks omitted).

Scarsi claims to adopt a standard in which egregious government misconduct could have an influence elsewhere, besides just causing the charges against the defendant, as Weiss wants the standard to be. So Scarsi says the standard doesn’t require a direct influece on the grand jury.

Then he abandons that standard.

In his ruling, Scarsi ultimately adopts Weiss’ standard of causing a prejudicial effect on the grand jury’s decision.

Defendant offers no facts to suggest that the information Shapley and Ziegler shared publicly had any prejudicial effect on the grand jury’s decision to return an indictment. That Shapley and Ziegler’s public statements brought notoriety to Defendant’s case is not enough to show prejudice.50

50 As noted previously, Defendant himself brought notoriety to his conduct though the publication of a memoir. [my emphasis]

In the same breath, he offers up a gratuitous representation that Hunter’s complaint was about notoriety and not, along with the threats to prosecutors’ family members, the ability to get a fair trial.

Judge Scarsi claims he was not going to exclude the impact that leaks might have earlier in the process; he’s referencing a case in which the offending federal official leaked documents for 16 months. But ultimately, he adopts Weiss’ focus on the actual grand jury decision to indict.

Now, as I suggested above, with regards to the evidence in front of Scarsi, his opinion is still totally sound, because Weiss is withholding precisely the proof of influence that Leo Wise claims doesn’t exist. But when Sobocinski’s testimony becomes public — whether via Hunter Biden’s IRS lawsuit, a change in Congress, or discovery challenges launched by Hunter himself — Scarsi’s adoption (then abandonment) of the possibility that strategic leaks could be basis for dismissal could become important. The standard is, as Scarsi says, still very very high. But the evidence in question attributes the stalking and threats against investigative personnel, including Weiss himself, to Shapley’s leaks. The IRS leaks caused the threats which immediately preceded Weiss reneging on the plea deal.

Get Me Roger Stone

As noted, in his discussion of the IRS leaks, Scarsi includes a gratuitous swipe that Hunter Biden’s memoir created notoriety. In doing so, Scarsi probably has adopted the prosecution’s continued misrepresentation of what the memoir does and does not do.

As to the crimes alleged in both the tax indictment and gun indictment, Hunter’s memoir couldn’t have brought notoriety to his conduct from the memoir. As Lowell correctly pointed out, Hunter’s memoir doesn’t describe failing to pay his taxes or buying a gun.

Hunter’s notoriety substantially comes from release of his private files by the same Donald Trump attorney who solicited dirt about Hunter from known Russian spies. Rudy Giuliani’s leaks are before Scarsi in several forms, in articles describing Trump’s politicization of them.

And the IRS agent claims — virtually all of which have been debunked or explained — were different in kind, because they were the kind of claims that could, and did, gin up threats against investigators rather than just Hunter himself. The IRS agents targeted David Weiss and Lesley Wolf. Hunter’s memoir didn’t do that.

Finally particularly in the context of the discussion about the IRS agent, Scarsi seems to adopt this swipe from prosecutors. But I think it overstates what the memoir shows and certainly overstates what is before Scarsi. The two longest quotes from the memoir in the indictment focus on the riff raff being a wealthy junkie attracts. For example, the passages of the memoir before Scarsi refer to strippers but does not say Hunter slept with them.

thieves, junkies, petty dealers, over-the-hill strippers, con artists, and assorted hangers-on,

[snip]

my merry band of crooks, creeps, and outcasts

[snip]

An ant trail of dealers and their sidekicks rolled in and out,

[snip]

Their stripper girlfriends invited their girlfriends, who invited their boyfriends.

This is important because both Shapley and Ziegler focused on prostitutes in their testimony to Congress (indeed, it’s how Ziegler predicated his side of the investigation). Worse still, Ziegler falsely called Lunden Roberts (an exotic dancer when Hunter met her) — who, as the recipient of the best-documented improper write-off from Hunter, may be a witness at trial — a prostitute before he corrected himself. So the IRS agents, not the memoir, pushed one aspect highlighted in the indictment that is not in the book: the sex workers. Remember: the indictment itself conflates women with prostitutes (and appears to ignore a male who tried to insinuate himself into Hunter’s life as an assistant); the same conflation Ziegler engaged in appears in the indictment.

Which brings me back to Weiss’ false claims about memoirs and Roger Stone.

As a reminder, the selective comparator is not a huge part of Hunter Biden’s argument. He focused on the way a political campaign that led to stalking and threats against prosecutors led David Weiss to abandon a plea deal.

But Stone is in there. And in suggesting that Stone is not a fair comparator, Judge Scarsi punts on a number of things. For example, he admits that DOJ accused Stone, via civil complaint, of defrauding the United States.

The Stones intended to defraud the United States by maintaining their assets in Drake Ventures’ accounts, which they completely controlled, and using these assets to purchase the Stone Residence in the name of the Bertran Trust.

But Scarsi seems to dismiss the intent involved in creating alter egos to hide money from the IRS because the civil resolution of the complaint led to voluntary dismissal of the fraud claim.

Nothing in the record of the civil cases, let alone in the circumstances of the “countless others” the Government declines to prosecute, (Selective Prosecution Mot. 19), provides an inference that these individuals are similarly situated to Defendant with regard to indicia of criminal intent. Obviously, Stone and Shaughnessy were civil cases; intent was not a material element of the nonpayment counts at issue. See generally Compl., United States v. Stone, 0:21-cv60825-RAR (S.D. Fla. April 16, 2021), ECF No. 1; 37

37 Intent was an element to a claim for fraudulent transfer the United States brought against the Stones, which the United States eventually dismissed voluntarily. Joint Mot. for Entry of Consent J. 1, United States v. Stone, 0:21-cv-60825-RAR (S.D. Fla. July 15, 2022), ECF No. 63.

But that’s part of the point! IRS used the threat of fraud and evasion charges to get the bills paid, and they dismissed what could have been a separate criminal charge — one they allege was done to evade taxes — once they got their bills paid. Hunter didn’t get that chance, in part because he paid his taxes two years before the charges filed against him.

Stone allegedly evaded taxes for two tax years, not one, and unlike Hunter, had not paid when the legal proceeding was filed against him.

And Scarsi doesn’t address the full extent of Lowell’s rebuttal to Weiss’ attempt to minimize Stone; he doesn’t note they’ve been caught in a false claim.

But adopting Defendant’s position would ignore the numerous meaningful allegations about Defendant’s criminal intent that are not necessarily shared by other taxpayers who do not timely pay income tax, including the Shaughnessys and Stones. (See Selective Prosecution Opp’n 2–4
(reviewing allegations).) Without a clear showing that the evidence going to criminal intent “was as strong or stronger than that against the defendant” in the cases of the Shaughnessys, the Stones, and other comparators, the Court declines to infer discriminatory effect. United States v. Smith, 231 F.3d 800, 810 (11th Cir. 2000).38

For example, Scarsi doesn’t mention, at all, that the other Stone crimes invoked in the DOJ complaint against Stone posed real rather than hypothetical danger to a witness and a judge and were invoked as his motive in the complaint, not even though that was part of the rebuttal that Weiss attempted to make. He doesn’t mention that the complaint against Stone alleges that Stone used his Drake account to pay associates and their relatives, one of the allegations included in the Hunter indictment, nor that it describes how instead of paying taxes the Stone’s enjoyed a lavish lifestyle, again repeating allegations in the Hunter indictment.

32. The Stones used Drake Ventures to pay Roger Stone’s associates, their relatives, and other entities without providing the required Forms 1099-MISC (Miscellaneous Income) or
W-2s (Wage and Tax Statement).

[snip]

[T]he Stones’ use of Drake Ventures to hold their funds allowed them to shield their personal
income from enforced collection and fund a lavish lifestyle despite owing nearly $2 million in
unpaid taxes, interest and penalties.

Scarsi does recognize, in passing, to how Weiss falsely claimed that Stone hadn’t written a memoir when it was actually more closely tied to the complaint than Hunter’s.

38 In his reply, Defendant proffers that Mr. Stone “wrote a memoir about his criminal actions,” as Defendant is alleged to have done. (Selective Prosecution Reply 6 (emphasis removed).) That memoir is not before the Court, and its value as evidence in a putative criminal tax evasion case against Mr. Stone is unestablished.

Now, Scarsi is absolutely right on this point as well: Abbe Lowell should have ponied up for Stone’s reissued Memoir so Scarsi could read it. But some of the evidence of the tie is before him.

Judge Scarsi might include Lowell’s link to my post among those that were not part of the record when he drafted this opinion — what he described as Lowell’s lack of evidence. But it was included among those for which Lowell submitted a declaration before Scarsi docketed his opinion (on which filing Scarsi has thus far taken no action). If Scarsi read all of Lowell’s sources as he claimed, it would be before him. (Welcome to my humble blog, Judge Scarsi!)

While my post did not link the memoir, it included a paragraph by paragraph description of the introduction that violated the gag order. I described how Stone, “Complains about his financial plight,” in this paragraph, which, like the tax complaint, ties Stone’s decision to stop paying taxes to the Mueller investigation:

Furthermore, my post did include a link to this filing, providing much of the correspondence regarding the reissue of the memoir. It includes, for example, Stone’s demand for an immediate wire payment because he owed others — people who worked on the book, but also likely potential witnesses in the Mueller investigation (for example, Kristin Davis, who was subpoenaed in that investigation and the January 6 investigation, was heavily involved in promotion of the book).

Stone was describing doing prospectively what the Hunter indictment alleges prospectively, payoffs to associates and their family members.

It also shows that Stone was paid, once in December 2018 and once in January 2019, to the Drake Ventures account that was used — per DOJ’s complaint — with the intent of defrauding the United States.

In unredacted form, those emails would provide one of just two of the kinds of information for which the tax indictment — as distinct from the gun indictment, which relies on it much more directly (though Weiss got his evidence wrong, again, and so misstates its value) — uses the memoir: To show income that could have gone to paying taxes.

158. In 2020, prior to when the Defendant filed the 2019 Form 1040, the Defendant’s agent received multiple payments from the publisher of his memoir and then transferred the following amounts to the Defendant’s wife’s account in the amounts and on the dates that follow:

a. $93,750 on January 21, 2020; and
b. $46,875 on May 26, 2020.

There was certainly enough in my post such that Scarsi didn’t have to infer that Stone’s two years of alleged invasion and fraud more closely mirror Hunter’s than he let on.

The comparison was never going to be the basis for dismissal. But because of the way Scarsi minimizes this, the comparison with another  “American [who] earn[s] millions of dollars of income in a four-year period and [wrote] a memoir allegedly memorializing criminal activity” will be ripe for inclusion in any appeal, particularly if — as I expect — Hunter’s team demonstrates at trial how prosecutors have mistaken a memoir of addiction as an autobiography, one that hurts their tax case as much as it helps.

Scarsi accuses Lowell of post hoc argument

As noted above, when Scarsi loudly accused Abbe Lowell of presenting no evidence to support his selective and vindictive prosecution claim at his motions hearing, he was making a procedural comment about the way Lowell laid out evidence that pressure from Republicans and the IRS agents led Weiss to renege on a plea deal and file the 9-count indictment before Scarsi.

Scarsi has not rejected Lowell’s belated filing with such a declaration, which leaves me uncertain about whether those materials are now (and therefore were) formally before Scarsi before he ruled, even if only minutes before.

For both the IRS challenge and the general selective and vindictive claim, Scarsi ruled that Lowell had not reached the very high bar for such things. As I noted above, that is the easy decision, one that would almost always be upheld on appeal. These are not, on their face, controversial decisions at all.

Where those decisions become interesting, in my opinion — or could become interesting if they were included along with the inevitable appeal of the weird immunity decision — is in how he rejected those claims.

At the hearing, Judge Scarsi asked Abbe Lowell if he had any evidence of vindictive prosecution besides the timeline laid out in his filing, which relies on all those newspaper articles. Lowell conceded the timeline is all he had, but that “it’s a juicy timeline.” (Wise and Hines both wailed that the description of all this impugns them, an act that is getting quite tired but seemed to work like a charm for Scarsi.)

At the hearing, Lowell reportedly included several things in this discussion:

  • The existence of an already agreed plea and diversion in June
  • Congressman Jason Smith’s efforts to intervene in the plea hearing
  • Leo Wise reneging at the plea hearing on earlier assurances there was no ongoing investigation into Hunter Biden, followed by Weiss’ immediate effort to strip all immunity from the diversion agreement
  • The resuscitation of the Alexander Smirnov allegations
  • A claim (that may reflect ignorance of some grand jury testimony) that, in the tax case, Weiss already had all the evidence in his possession that he had in June 2023 when he decided to pursue only misdemeanors
  • The fact that, in the gun case, Weiss didn’t pursue basic investigative steps (like getting a gun crimes warrant for the laptop content or sending the gun pouch to the lab to be tested for residue) until after charging Hunter
  • The subpoena to Weiss and his testimony just weeks before the tax indictment

In response to Lowell emphasizing these parts of the timeline — not a single one of which relies exclusively on news reports — the Judge who misused the phrase “beg the question” cited two Ninth Circuit precedents, neither of which Weiss relied on, to accuse Lowell of making a post hoc argument.

At best, Defendant draws inferences from the sequence of events memorialized in reporting, public statements, and congressional proceedings pertaining to him to support his claim that there is a reasonable likelihood he would not have been indicted but for hostility or punitive animus. As counsel put it at the hearing, “It’s a timeline, but it’s a juicy timeline.” But “[t]he timing of the indictment alone . . . is insufficient” to support a vindictiveness theory. Brown, 875 F.3d at 1240; see also United States v. Robison, 644 F.2d 1270, 1273 (9th Cir. 1981) (rejecting appearance-of-vindictiveness claim resting on “nothing more than the post hoc ergo propter hoc fallacy”). [links added]

Neither of these opinions are about timelines. Brown involves a case where someone already convicted of a federal weapons crime but awaiting trial in a state murder case escaped; after he made a declaration at his cellmate’s trial for escaping, he was charged himself for escaping. The Ninth Circuit ruled that was not vindictive because prosecutors got newly obtained evidence — his own declaration — with which to charge him for escaping.

Robison involves another case of newly discovered evidence. Several months after a state murder conviction was overturned and as he was appealing a charge for destroying a Federal building, he was charged with burning down a tavern. The court held a hearing (this was back in 1980, when such things were still done), and determined that the evidence implicating Robison in the tavern bombing post-dated his appeals.

Now, Weiss would argue (but curiously has always stopped well short of doing so) that he did get new evidence: He called a bunch of witnesses before a CA grand jury. Best as I can tell, the only thing Lowell has seen from that was testimony used in the warrant to search the laptop for gun crimes after the indictment. In neither LA nor in Delaware is Weiss arguing he got new information (while Weiss did serve a bunch of subpoenas for documents against Hunter, it’s not clear how many witness interviews were part of his apparently abandoned attempt to charge Hunter and his father with bribery). Unlike Jack Smith, Special Counsel Weiss appears not to be sharing all the grand jury testimony against Hunter.

But neither of these cases (as distinct from Bordenkircher and Goodwin) involve a prosecutor upping the ante on the same crimes as Weiss did. More importantly, they were offered to defeat Lowell’s claim of a timeline, a whole series of events. In response, Scarsi offers up cases that involve two (arguably, three with Robison) events.

Lowell’s timeline focuses closely on June and July, not December, and yet Scarsi adopts precedents that focus on the timing of an indictment, not a reneged plea.

I’m interested not so much that these citations are inapt (but they are). It’s what Scarsi does to dismantle Lowell’s timeline.

Scarsi corrects, and then fiddles with, and in two places, ignores the timeline

Scarsi is absolutely right that Hunter’s initial motion is a mess (remember that Lowell had asked for an extension in part because the lawyer responsible for these filings had a death in the family; I suspect that Scarsi had his opinion on this motion written before the hearing and possibly even before the reply). Scarsi makes much, correctly, of several details Lowell erroneously suggests immediately preceded the December tax indictment.

Moreover, Defendant appears to suggest that, after the deal in Delaware fell apart but before the filing of the indictment in this case, Mr. Trump “joined the fray, vowing that if DOJ does not prosecute Mr. Biden for more, he will ‘appoint a real special prosecutor to go after’ the ‘Biden crime family,’ ‘defund DOJ,’ and revive an executive order allowing him to fire Executive Branch employees at will.” (Id. at 7.) The comments he cites all predate the unraveling of the Delaware plea—if not even earlier, before the announcement of a plea.

But in correcting that error, Scarsi has noted (what the Delaware motion does note) that Trump’s attacks on Weiss were an immediate response to the publication of the plea agreement.

And that’s interesting, because Scarsi repeatedly fiddles with the timeline on his own accord.

For example, he starts the entire opinion by laying out what he claims is “a brief background of undisputed events leading up to the Indictment.” In it, he astonishingly declines to date the plea agreement — which was publicly docketed on June 20 — anytime before late July 2023.

By late July 2023, Defendant and the Government reached agreement on a resolution of the tax charges and the firearm charges memorialized in two separate agreements: a memorandum of plea agreement resolving the tax offenses, (Machala Decl. Ex. 3 (“Plea Agreement”), ECF No. 25-4), and a deferred prosecution agreement, or diversion agreement, addressing the firearm offenses, (Machala Decl. Ex. 2 (“Diversion Agreement”), ECF No. 25-3).

So for the opinion as a whole, Scarsi has simply post-dated events that unquestionably happened a month earlier. Much later in the opinion, however, Scarsi cites the evidence (accompanied by a declaration) that that decision happened in June.

On May 15, 2023, prosecutors proposed “a non-charge disposition to resolve any and all investigations by the DOJ of Mr. Biden.” (Clark Decl. ¶ 6.)26 After further discussions over the following month, Defendant and the Government coalesced around a deal involving a deferred prosecution agreement and a plea to misdemeanor tax charges. (See generally id. ¶¶ 7–39.)

Having post-dated the actual prosecutorial decision filed to docket in June, Scarsi repeatedly says that Hunter doesn’t have any way of knowing when any prosecutorial decisions happened. In one place, he makes the fair assertion that Hunter hasn’t substantiated when particular decisions were made.

Defendant asserts that a presumption of vindictiveness arises because the Government repeatedly “upp[ed] the ante right after being pressured to do so or Mr. Biden trying to enforce his rights.” (Selective Prosecution Mot. 16.) Defendant alleges a series of charging decisions by the prosecution, (id. at 4–7), but the record does not support an inference that the prosecutors made them when Defendant says they did.

[snip]

But the fact of the matter is that the Delaware federal court did not accept the plea, the parties discussed amendments to the deal they struck toward satisfying the court’s concerns, and the deal subsequently fell through.

In another, he makes the ridiculous assertion that Hunter has not substantiated when any prosecutorial decisions were made.

Defendant asserts that the Government made numerous prosecuting decisions between 2019 and 2023 without offering any substantiating proffer that such decisions were made before the Special Counsel decided to present the charges to the grand jury, let alone any proffer that anyone outside the Department of Justice affected those decisions, let alone any proffer that any of those decisions were made based on unjustifiable standards.

Hunter presented authenticated, undisputed proof regarding when one prosecutorial decision was made, and it was made in June, not July, where (in one place) Scarsi misplaces it.

Similarly, Scarsi distorts the timeline when Leo Wise reneged on the assurances that there was no further investigation. He admits that prosecutors withdrew all immunity offer in August, but dates it to after the plea hearing, not before (as represented by Wise’s comment about an ongoing investigation).

On July 26, 2023, the district judge in Delaware deferred accepting Defendant’s plea so the parties could resolve concerns raised at the plea hearing. (See generally Del. Hr’g Tr. 108–09.) That afternoon, Defendant’s counsel presented Government counsel a menu of options to address the concerns. (Def.’s Suppl. Ex. C, ECF No. 58-1.)31 On July 31, Defendant’s counsel and members of the prosecution team held a telephone conference in which they discussed revising the Diversion Agreement and Plea  Agreement. The Government proposed amendments and deletions. (See Lowell Decl. Ex. B, ECF No. 48-3.) On August 7, counsel for Defendant responded in writing to these proposals, signaling agreement to certain modifications but resisting the Government’s proposal to modify the provision of the Diversion Agreement contemplating court adjudication of any alleged breaches and to delete the provision conferring immunity to Defendant. Defense counsel took the position that the parties were bound to the Diversion Agreement. (Id.) On August 9, the Government responded in writing, taking the position that the Diversion Agreement was not in effect, withdrawing its proposed modifications offered on July 31 in addition to the versions of the agreements at play on July 26, and signaling that it would pursue charges. (Def.’s Suppl. Ex. C.)

In the section of his opinion discussion selective prosecution, he accepts that the IRS agents first started leaking in May 2023, but finds — having heard Leo Wise’s misleading claim that he knew of no effect the disgruntled IRS agents had and having also acknowledged that Weiss himself testified that he was afraid for his family’s safety (but leaving it out of all his timeline discussions) — that Lowell presented no evidence that Shapley and Ziegler affected Weiss’ decision-making.

Meanwhile, in late May, Internal Revenue Service agents spoke to news media and testified before the Ways and Means Committee of the United States House of Representatives about their involvement in the tax investigation of Defendant. E.g., Jim Axelrod et al., IRS whistleblower speaks: DOJ “slow walked” tax probe said to involve Hunter Biden, CBS News (May 24, 2023, 8:31 p.m.), https://www.cbsnews.com/news/irs-whistleblower-tax-probe-hunter-biden/ [https://perma.cc/7GQF-2HJA]; Michael S. Schmidt et al., Inside the Collapse of Hunter Biden’s Plea Deal, N.Y. Times (Aug. 19, 2023), https://www.nytimes.com/2023/08/19/us/politics/inside-hunter-biden-pleadeal.html [https://perma.cc/6CVJ-KYDK].27

27 Defendant asserts that the IRS agents’ actions prompted then-United States Attorney David Weiss to change his position away from a non-charge disposition to the plea the parties ultimately contemplated, (Selective Prosecution Mot. 5 & nn.11–12), but the support for this assertion apparently is his own attorneys’ and the IRS agents’ speculation as reported by the New York Times, see Schmidt et al., supra (“Mr. Biden’s legal team agrees that the I.R.S. agents affected the deal . . . .”). For the same story, Mr. Weiss declined to comment, and an unnamed law enforcement official disputed the assertion. Id.

Later in that section, having made his big show of rejecting Weiss’ bid to limit the consideration of IRS influence just to grand jury decisions but then flip-flopped, Scarsi decides that he’s not going to look too closely at this timing (for the egregious violation motion).

43 The particulars of when and how Defendant asserts Shapley and Ziegler made these disclosures, and what their contents were, are immaterial to this Order. The Court declines to make any affirmative findings that Shapley and Ziegler violated these rules given the pending civil case Defendant brought against the IRS related to the alleged disclosures, see generally Complaint, Biden v. U.S. IRS, No. 1:23-cv-02711-TJK (D.D.C. Sept. 18, 2023), ECF No. 1, and the potential for criminal prosecution of such violations. But the Court need not resolve whether their public statements ran afoul of these nondisclosure rules to decide the motion.

That — plus Wise’s misleading comment — is how Scarsi dismisses Lowell’s claim that the IRS agents had a role in killing the plea deal.

(“There is no doubt that the agents’ actions in spring and summer 2023 substantially influenced then-U.S. Attorney Weiss’s decision to renege on the plea deal last summer, and resulted in the now-Special Counsel’s decision to indict Biden in this District.”).) His theory rests on a speculative inference of causation supported only by the sequence of events.

Meanwhile, his efforts to dismiss the import of Congress’ and Trump’s earlier intervention is uneven. Scarsi’s treatment of this passage from Hunter’s motion deserves closer consideration:

Mr. Biden agreed to plead guilty to the tax misdemeanors, but when the plea deal was made public, the political backlash was forceful and immediate. Even before the Delaware court considered the plea deal on July 26, 2023, extremist Republicans were denouncing it as a “sweetheart deal,” accusing DOJ of misconduct, and using the excuse to interfere with the investigation.13 [2] Leaders of the House Judiciary, Oversight and Accountability, and Ways and Means Committees (“HJC,” “HOAC,” and “HWMC,” respectively) opened a joint investigation, and on June 23, HWMC Republicans publicly released closed-door testimony from the whistleblowers, who, in the words of Chairman Smith, “describe how the Biden Justice Department intervened and overstepped in a campaign to protect the son of Joe Biden by delaying, divulging and denying an ongoing investigation into Hunter Biden’s alleged tax crimes.”14 Then, one day before Mr. Biden’s plea hearing, Mr. Smith tried to intervene [4] to file an amicus brief “in Aid of Plea Hearing,” in which he asked the court to “consider” the whistleblower testimony.15

13 Phillip Bailey, ‘Slap On The Wrist’: Donald Trump, Congressional Republicans Call Out Hunter Biden Plea Deal, USA Today (June 20, 2023), https://www.usatoday.com/.

14 Farnoush Amiri, GOP Releases Testimony Alleging DOJ Interference In Hunter Biden Tax Case, PBS (June 23, 2023), https://www.pbs.org/.

15 United States v. Biden, No. 23-mj-00274-MN (D. Del. 2023), DE 7. [brackets mine]

Here’s how Scarsi treats this passage laying out what happened between the publication of the plea and the failed plea hearing:

The putative [sic] plea deal became public in June 2023. Several members of the United States Congress publicly expressed their disapproval on social media. The Republican National Committee stated, “It is clear that Joe Biden’s Department of Justice is offering Hunter Biden a sweetheart deal.” Mr. Trump wrote on his social media platform, “The corrupt Biden DOJ just cleared up hundreds of years of criminal liability by giving Hunter Biden a mere ‘traffic ticket.’” Phillip M. Bailey, ‘Slap on the wrist’: Donald Trump, congressional Republicans call out Hunter Biden plea deal, USA Today (June 20, 2023, 11:17 a.m.), https://www.usatoday.com/story/news/politics/2023/06/20/donald-trump-republicans-react-hunter-biden-plea-deal/ 70337635007/ [https://perma.cc/TSN9-UHLH]. 28 On June 23, 2023, the Ways and Means Committee of the United States House of Representatives voted to publicly disclose congressional testimony from the IRS agents who worked on the tax investigation. Jason Smith, chair of the Ways and Means Committee, told reporters that the agents were “[w]histleblowers [who] describe how the Biden Justice Department intervened and overstepped in a campaign to protect the son of Joe Biden by delaying, divulging and denying an ongoing investigation into Hunter Biden’s alleged tax crimes.” Farnoush Amiri, GOP releases testimony alleging DOJ interference in Hunter Biden tax case, PBS NewsHour (June 23, 2023, 3:58 p.m.), https://www.pbs.org/newshour/politics/gop-releases-testimony-alleging-dojinterference-in-hunter-biden-tax-case.29 One day before the plea hearing in the United States District Court for the District of Delaware, Mr. Smith moved to file an amicus curiae brief imploring the court to consider the IRS agents’ testimony and related materials in accepting or rejecting the plea agreement. Mem. of Law in Support of Mot. for Leave to File Amicus Curiae Br., United States v. Biden, No. 1:23-mj-00274-MN (D. Del. July 25, 2023), ECF No. 7-2; Amicus Curiae Br., United States v. Biden, No. 1:23-mj-00274-MN (D. Del. July 25, 2023), ECF No. 7-3.30

28 This source does not stand for the proposition that “extremist Republicans were [1] . . . using the excuse to interfere with the investigation.” (Selective Prosecution Mot. 5–6.) Of Mr. Weiss, Mr. Trump also wrote: “He gave out a traffic ticket instead of a death sentence. . . . Maybe the judge presiding will have the courage and intellect to break up this cesspool of crime. The collusion and corruption is beyond description. TWO TIERS OF JUSTICE!” Ryan Bort, Trump Blasts Prosecutor He Appointed for Not Giving Hunter Biden ‘Death Sentence,’ Rolling Stone (July 11, 2023), https://www.rollingstone.com/politics/politics-news/trump-suggests-hunter-bidendeath penalty-1234786435/ [https://perma.cc/UH6N-838R].

29 This source does not stand for the proposition that several leaders of house committees “opened a joint investigation.” (Selective Prosecution Mot. 6.) [3]

30 The docket does not show that the Delaware district court resolved the motion, and the Court is uncertain whether the court considered Mr. Smith’s brief. [brackets mine]

First, Scarsi uses an ellipsis, marked at [1], to suggest the only reason Lowell cited the USA Today story was to support the claim that Republicans moved to intervene in the investigation, when the sentence in question includes three clauses, two of which the story does support. The sentence immediately following that three-clause sentence [2] makes a claim — OGR, HWAM, and HJC forming a joint committee, that substantiates that claim. Scarsi’s complaint at [3] is not that the cited article does not include Jason Smith’s quotation; rather, it’s that Lowell has not pointed to a source for the formation of a joint investigation (a later-cited source that Scarsi never mentions does include it). Meanwhile, Scarsi applies a measure — whether Judge Noreika considered Smith’s amicus, not whether he tried to file it — that Lowell doesn’t make (and which is irrelevant to a vindictive prosecution motion, because Noreika is not the prosecutor); Smith did succeed in getting the amicus unsealed, including the exhibits that Hunter claimed include grand jury materials. Whether or not Judge Noreika considered the content of the amicus, that Smith filed it is undeniable proof that Smith tried to intervene, which is all Hunter alleged he did.

Meanwhile, Scarsi relegates Trump’s Social Media threats — which Scarsi later corrects Lowell by noting that they came during precisely this period — to a footnote.

Here’s one thing I find most interesting. Scarsi’s two most valid complaints about Lowell’s filing are that, in one part of his timeline but not another, he misrepresented Trump’s pressure as happening after the plea failed, and that Lowell claimed that Weiss testified he had gotten death threats when instead the cited source (and the Weiss transcript I assume Lowell does not have) instead say that Weiss feared for his family. He acknowledges both those things: Trump attacked Weiss, and Weiss got threats that led him to worry for the safety of his family.

But he never considers Weiss’ fear for his family’s safety in his consideration of what happened between June and July. He never considers whether those threats had a prejudicial affect on Hunter Biden.

And aside from that correction regarding the safety comment, nor does Scarsi consider the most direct aspect of Congress’ intervention in the case — that Congress demanded Weiss testify, and he did so just weeks before he filed the charges actually before Scarsi.

In other words, Scarsi accuses Lowell of making a post hoc argument, claiming that he is simply pointing to prior events to explain Weiss’ subsequent actions. Except he ignores the impact of the two most direct allegations of influence.

Lowell did neglect to notice one important detail

There is one detail that Scarsi entirely ignores — but it’s one area where Lowell’s failures to provide evidence may be the most problematic.

Scarsi doesn’t mention Alexander Smirnov.

But it’s not clear the Smirnov case is properly before Scarsi.

He was definitely mentioned. Weiss first raised Smirnov, though without providing docket information, and Lowell responded.

But as I laid out here, while both discovery requests pertaining to the Brady side channel as well as a notice of the Smirnov indictment are before Judge Noreika, neither filing was repeated before Scarsi. There are allusions to it — such as Jerry Nadler’s efforts to chase down the Brady side channel, but not formal notification in court filings of the FD-1023 or Smirnov’s arrest.

In his introduction to the selective prosecution section, Scarsi noted that there was more in the docket in Delaware, stuff he was not going to consider (which leads me to believe he’s got something specific in mind that he is excluding).

20 The parties freely refer to briefs they filed in connection with a motion to dismiss filed in the criminal case against Defendant pending in Delaware, in which the parties advanced similar arguments, but more voluminously. Although the Court has read the Delaware briefing, (see Tr. 13, ECF No. 18), its resolution of the motion rests only on the arguments and evidence presented in the filings in this case. See United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020). [link added]

Scarsi’s citation seems to suggest that arguments not made before him by Lowell would be improper to consider. But at least with respect to Lowell’s request for the materials on the side channel, it has never been clear whether Lowell was supposed to repeat discovery requests before Scarsi he already made in Delaware.

One way or another, though, Scarsi has not formally considered the abundant evidence that the reason Leo Wise reneged on past assurances that there was no ongoing investigation was so he could chase Smirnov’s false claims of bribery. There are ways that Lowell could present that as new news, but it seems that Scarsi maintains that he has not yet done so, not even when prosecutors were the first to raise it.

As I keep saying, Scarsi’s decision on the selective prosecution and the egregious misconduct are not wrong. But the way in which he rejected them provide reason for complaint.

Lowell has strongly suggested that he will appeal this decision (but he likely cannot do so unless Hunter is found guilty). If that happens, it’s likely these weaknesses in Scarsi’s opinion — his failure to adhere to his own admirably rigorous standards — may make the opinion more vulnerable to appeal.

Update: Note I’ve updated my Hunter Biden page and also added Alexander Smirnov to my nifty Howard Johnson graphic.

David Weiss Is Withholding the Proof Leo Wise Claims Doesn’t Exist

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Leo Wise continues to engage in a kind of arbitrage to win his argument that politics didn’t lead David Weiss to renege on Hunter Biden’s plea agreement, making claims that may be true for him and Derek Hines, but are patently false for David Weiss, the only prosecutor still on the team who was involved in the plea deal itself.

According to the Daily Mail, Wise insisted in the hearing the Hunter Biden prosecution last week that there’s no proof the claims of disgruntled IRS agents Joseph Ziegler and Gary Shapley affected the case.

‘These two agents started the dominos,’ Lowell said. ‘When was the last time a chair of a congressional committee sought intervention to stop a plea deal?’

Wise hit back that the claim he was influenced by former IRS agents was ‘patently absurd’, adding ‘I couldn’t pick them out of a lineup’.

‘The defense’s problem is… they offer no proof,’ Wise said. ‘Other than insulting us, where is the proof?’

The proof exists in official testimony that DOJ witnessed and surely has in its possession.

On September 7 of last year — just days before the first indictment — Special Agent in Charge Thomas Sobocinski (who also remained on the case before and after the reneged plea deal) described that after Gary Shapley went public in late May, he and David Weiss spoke about how Shapley’s comments would affect the case.

The way it affected the case, Sobocinski explained, was that family members of investigative team members were getting stalked.

Q After it became public that Gary Shapley was going to come to Congress and he gave, I think, an interview on CBS in the at the end of May before his congressional testimony, who did you discuss that with?

A My team within Baltimore, probably folks within the Criminal Investigative Division. Definitely David Weiss.

Q And what was the nature of your conversation with David Weiss?

A I need to go off the record for a minute.

Mr. [Steve] Castor. Okay.

[Discussion held off the record.]

Mr. Sobocinski. Yeah. In general, it was concerns about how this was going to affect the ongoing case and were there issues we needed to take into at least from the FBI side to move forward.

BY MR. CASTOR:

Q After Shapley’s testimony became public in June, did you have any conversations with David Weiss about that?

A We acknowledged it, but it wasn’t I mean, we didn’t sit there with the transcript going back and forth. We both acknowledged that it was there and that it would have had it had an impact on our case.

Q Okay. Did any of your conversations with David Weiss, you know, have anything to do with like, can you believe what Shapley’s saying, this is totally 100 percent untrue?

A I don’t remember that level of it.

Q If it was

A I was more concerned about how this is affecting my employees. I now have FBI employees that names are out there. I have FBI employees and former FBI retired agents who’ve served for 20plus years whose parents are getting phone calls, whose photos with their girlfriends, who their children who are being followed. That is not something that we were prepared for, and I was concerned about having that continue or expand to other one of my employees. [my emphasis]

Obviously, both Sobocinski and David Weiss (who attended the hearing) know about the discussions they themselves had about how Shapley’s media tour led family members of the investigative team to be stalked. FBI’s Assistant General Counsel Megan Greer and DOJ’s Deputy Assistant Attorney General for Legal Affairs Sara Zdeb attended the deposition as well and so know of this testimony. It is my understanding that DOJ has reviewed these transcripts for accuracy, and so must have copies of them.

The proof is there, almost certainly in DOJ custody. It’s just that David Weiss is withholding it from Hunter Biden.

I will cycle back to this issue once a transcript becomes available. I’ve seen no mention of the uncontested assertion by Abbe Lowell that David Weiss came to fear for the safety of his family. Judge Mark Scarsi reportedly asserted that the only evidence Lowell presesnted is stuff on the Internet — but of course, there’s a DC Circuit opinion that found that Trump’s threats “have real-world consequences.”

It’s not enough for Leo Wise to claim that Shapley’s actions had no impact on his own behavior. He needs to address whether it had an impact on Weiss’ actions.

And according to the FBI supervisor overseeing this case, Shapley’s actions “had an impact on our case,” because they led everyone to start worrying about the safety of their families.

Leo Wise may claim that because it wasn’t his family being stalked, the media tour didn’t have an impact on his decisions. But he would never have been added to the team if not for the campaign by the disgruntled IRS agents.

The US Attorney for Delaware Treats Contract Law as a Hypertechnicality

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Before I lay out how David Weiss responded to Judge Mark Scarsi’s invitation to address two legal issues with four of the charges against Hunter Biden, let me emphasize: these two arguments are a sideshow. Even if Abbe Lowell’s argument that the statute of limitations expired for Count 1 and his argument that venue is improper for Counts 1-4 of the indictment succeeded, the guts of the indictment, three felony counts for the way in which Hunter paid his 2018 taxes, would remain, along with one misdemeanor each for 2018 and 2019. Lowell also challenged how Weiss charged one of the felonies and the 2019 misdemeanor, but still, the core felony conduct remains unchallenged with these technical challenges (as distinct from the more substantive motions to dismiss).

I’m interested in them, though, for what they might say about Weiss’ conception of his transition from US Attorney to Special Counsel. I’m interested in them for what they might say about a potentially more serious problem with the way Weiss is approaching discovery. I’m interested in them because of the way that Leo Wise and Derek Hines have persistently dodged the unrebutted evidence that David Weiss really did renege on assurances given to Hunter’s attorneys last June that there was no ongoing investigation into the President’s son when he signed the plea deal.

I laid out all the “technical” motions to dismiss here. I wrote about Judge Scarsi’s order for sur-reply briefing here. Links to all these filings are on this page.

I expected Weiss’ sur-reply to address the new legal questions Lowell raised: Did the tolling agreement Hunter signed with Delaware US Attorney David Weiss carry over after Weiss became Special Counsel? Does judicial estoppel prevent Weiss from claiming Hunter was a resident of California in 2018 when he asserted that Hunter was a resident of DC in 2018 in the tax information filed in Delaware?

Sadly, Weiss engaged with neither of those interesting legal questions. Instead, to both questions, he responded with an evidentiary claim, a legal dodge, and an attack (Leo Wise and Derek Hines seem to love such manufactured attacks).

Here’s how it looked in the tolling sur-reply:

  • Charging 2016 as a crime that occurred in 2020 was not a way to get around statutes of limitation; it was, instead, an allegation that willfulness pertaining to Hunter’s 2016 taxes only happened in 2020.
  • Weiss only raised the tolling agreement to demonstrate he wasn’t operating in bad faith by charging the 2016 year.
  • How dare Hunter Biden neglect to mention the tolling agreements that Hunter Biden believes are legally irrelevant for this indictment!

Here’s how it looked in the judicial estoppel sur-reply.

  • Hunter presented no evidence that the prosecution knew he only moved to California in 2019 and the grand jury found that Hunter was a resident of California in 2018, so there.
  • There’s no legal authority for dismissing an indictment based on a judicial estoppel claim.
  • How dare Hunter Biden neglect to mention that “the government” told Judge Noreika that “venue for these offenses and any other related tax offenses lies either in the Central District of California or in the District of Columbia,” which is irrelevant anyway because that statement would have incorporated the felony counts for which venue is California! [my emphasis]

In both retorts, though, Weiss evinced precisely the kind of legal slovenliness I suspect is behind any discovery problems and the refusal to deal with the unrebutted evidence about what Weiss said last June.

Start with the argument that Weiss is estopped from arguing that Hunter was a resident of California in 2018. Weiss relegates that claim — the entire purpose for this sur-reply — to a footnote. The footnote doesn’t address whether Weiss is estopped from making this claim. Rather, he says it’s not a basis to dismiss an indictment.

1 The defendant also argues that the doctrine of judicial estoppel bars the prosecution “from taking inconsistent positions before different courts,” although he cites no authority for the proposition that an indictment returned by a grand jury can be dismissed on that basis. Dkt. 53 at 5.

Is Weiss now arguing that a grand jury presentation is not a court proceeding? Because if he is estopped from making the argument, then how can he make it to a grand jury? Will this give Hunter opportunity to demand grand jury presentation records? And if he is estopped, how does he plan on making the argument at trial?

Plus, by focusing on his evidentiary claims rather than the legal question, Weiss has created a new problem for himself. He asserts that Hunter never moved back to the East Coast in 2018, even though Weiss has charged him for owning a gun starting on October 12, 2018, meaning Weiss is well aware Hunter had left California before his October 15, 2018 extension date for tax filing.

The defendant moved to California in the first week of April 2018 and expressed his intention to stay in California in a text message that he sent from California to his sister-in-law on April 12, 2018, writing, “I’m staying here indefinitely.” While he may have visited the east coast for brief periods later in 2018, he returned back to California, where he continues to live today. It is worth noting that defendant does not proffer any facts to support his claim that he lived in the District of Columbia through the summer of 2019.

This citation to something Hunter wrote to his “sister-in-law” is new; it’s not in the response. Hunter would be within his right to ask to file a sur-sur-reply on this point. And it might be worth doing.

That’s because, in his Delaware response to Hunter’s selective prosecution claim, Weiss relies heavily on this passage of Hunter’s memoir, almost the only thing Hunter said in his book about events from October 2018:

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. [my emphasis]

Only, Weiss replaced the bolded bit — which explains why Hunter returned, to attempt to salvage a romantic relationship with his sister-in-law — with an ellipsis.

Over and over again, Weiss has made the memoir the centerpiece of his reason for charging. Over and over again, Weiss has treated the memoir as transparent truth. Yet the memoir makes it clear that when Hunter moved back in fall 2018, he had the intent of staying, staying with Hallie (as reflected by Weiss’ obnoxious description of Hallie as Hunter’s “girlfriend” in this period), apparently the same person on whose communications with Hunter he relies to claim that Hunter moved permanently to California in 2018.

Weiss may well be able to establish that Hunter was in California for enough days to amount to residency. But he hasn’t addressed the legal question of whether he’ll be legally permitted to argue that.

His response to the tolling question is even nuttier.

Weiss argues that because the US Attorney for Delaware and DOJ’s Tax Division could have charged Hunter for an April 2017 violation, it’s proof that “the government” could have charged him.

The United States’ Attorney’s Office for the District of Delaware and the Tax Division are parties to the tolling agreement. Dkt. 29 at 1. Assuming for the sake of argument that the defendant is correct that the Office of Special Counsel would be time barred from bringing failure to pay charges for the 2016 tax year in April 2017 because it was not a party to the agreement, those two entities would not be. The Tax Division can file criminal tax charges in any judicial district in the United States with or without the participation of a United States Attorney’s Office. See 28 C.F.R. §§ 0.70. Further, even before he was made Special Counsel, David C. Weiss, as United States Attorney for the District of Delaware, had full authority to bring criminal tax charges in this case. While Mr. Weiss was appointed Special Counsel on August 11, 2023, he is still the United States Attorney for the District of Delaware and either that office or the Tax Division could have brought the charge in Count 1 and any of the other tax charges contained in the indictment. Nothing about Mr. Weiss’s appointment as Special Counsel precludes that. Thus, the argument that the government had to charge failure to pay for tax year 2016 in June 2020 because it couldn’t charge it in April 2017 is clearly incorrect.

Weiss uses “the government” ten times in the body of this filing, all but one in the section on the tolling agreements.

This is a version of an argument Weiss made aggressively in his Delaware response to Hunter’s Special Counsel challenge (and less aggressively in his Los Angeles response). Insisting that US Attorneys do what they’re permitted to do and Special Counsels do what they’re permitted to do is a “hypertechnicality,” Weiss argued in January.

[E]ven assuming the Attorney General’s delegation of authority under §§ 509, 510, 515, and 533 is unavailable, defendant’s argument boils down to a quibble that the indictment reads “Special Counsel” beneath David Weiss’s name and not “U.S. Attorney.” ECF No. 40, at 4. Such hypertechnicalities have no impact on the indictment’s validity or to the prosecutor’s statutory authority to conduct this litigation on behalf of the United States. Dismissal is thus wholly inappropriate.

Remember: That was a response to an argument that Weiss can’t be Special Counsel because DOJ regulations envision someone who can’t just flip back and forth between one title and another.

The argument is even worse here. The point is, though, that DOJ Tax didn’t charge Hunter with failure to pay his taxes in 2017.

And after that, David Weiss made some non-public argument to Merrick Garland that he legally required the independence granted by Special Counsel status, yet he keeps arguing that (perhaps now that he has discovered Alexander Smirnov was lying when he attempted to frame Joe Biden) he could flip back to US Attorney status with no legal bar. He’s making that argument even though public records indicate that DOJ Tax had real problems with even the charges Weiss was considering in 2022, much less the jerry-rigged charges as presented in Los Angeles. He’s making that argument even though, as Special Counsel, David Weiss appears to have withheld from discovery fairly damning details of the investigation conducted under US Attorney David Weiss. He’s making that argument even though he has never addressed the legal assurances the US Attorney’s Office in Delaware gave to Hunter’s lawyers.

In the diversion motions to dismiss, Hunter is arguing that Weiss breached a contract. Here, the US Attorney for Delaware, where so much of US contract law goes through, is arguing that even someone who is not party to a tolling agreement — which Hunter argues is a contract — can invoke it to deprive someone of his freedom.

Again, I don’t expect Judge Scarsi to be all that sympathetic to Hunter’s arguments and Scarsi could well just adopt Weiss’ argument that both are evidentiary issues for the jury to decide. But I also don’t imagine he’ll appreciate the way this sur-reply dodges both legal questions that Lowell raised.

Leo Wise Keeps Digging Through Difficulties Caused by a Dumb Prosecutorial Decision

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Because I want this language to be available for some other posts, I wanted to look at a ploy Leo Wise pulled in Alexander Smirnov’s Nevada detention hearing (Smirnov has another in Los Angeles later today).

In response to Smirnov’s attorneys describing the document fabrication charge as, “makeweight and politically-motivated; they do not involve espionage or theft and are thus not serious’,” Wise tried to use Hunter Biden’s claims of selective prosecution to rebut it.

MR. WISE: Now/ in addressing the 3142(g) factors, specifically the nature and seriousness of the offense, the defendants argues that “These allegations are make-weight and politically motivated. They do not involve espionage or theft and are, thus, not serious.”

I didn’t know what make-weight meant so I looked it up. According to Miriam Webster, the meaning of make-weight is something thrown into a scale to bring the weight to a desired value. I have no idea what that means in this context. Maybe Your Honor does.

And politically motivated, by whom? If Defense counsel is referring to his client’s allegations, then we agree. His client’s messages that are quoted in the indictment show political bias on his client’s part.

Or is the — is Defense counsel referring to us, the Government in this case? And that would certainly be curious. We’re prosecuting Hunter Biden on tax and gun charges, and his lawyers make the unfounded claim that we’re working at the direction of former President Trump and Congressional Republicans, although they can never explain why or how.

So then I guess what Defense counsel in this case is arguing is we’re working at the direction —

THE COURT: Are you saying Mr. Chesnoff and Mr. Schonfeld said that in their pleadings?

MR. WISE: That’s what they wrote. They wrote the charges in this case are make-weight and politically motivated.

THE COURT: So — but where do they — okay. But I — you’ve taken that quite a bit beyond that they’re saying — what did you just say was . . .

MR. WISE: Well, I’m trying to figure out — it sounds like they’re saying we’re working at the direction of the White House and the Biden campaign. And the other cases —

THE COURT: Is that a leap?

MR. WISE: And the other cases —

MR. WISE: — the Defense counsels are making the opposite argument.

THE COURT: Well —

MR. WISE: So we’re sort of curious which it is.

THE COURT: Well, and I’m not getting into the politics of this. I  have to make a determination under the Bail Reform Act whether he’s a flight risk or a danger and whether, if he is, there are conditions or a combination of conditions to address that.

MR. WISE: Right.

THE COURT: So I have no time for the politics of this case. I understand the underlying charges. There’s a component to that. But I’m not going to spend a lot of time here talking about the politics.

MR. WISE: Good. Because when we saw that, we were shocked that he would make the accusations —

THE COURT: So go on and continue with your argument.

MR. WISE: Now, the Defense counsel calls the charges not serious, which begs the question is he serious. The defendant’s lies have captured —

THE COURT: All right. I’m not going to get personal with the attacks on counsel. All right? Let’s keep it to the facts and the law. You don’t need to make snide remarks about “is he serious.” And I’m not going to tolerate that from either side .

MR. WISE: Understood, Your Honor. The defendant’s lies in this case have captured the national imagination. And while the — while the filing says they do not involve espionage, of course the charges do involve foreign intelligence services.

He lashed out again later in the hearing.

MR. WISE: You know, while counsel claims, I guess — I mean, in addition — and I hear him say now that the “serious” comment was about the — the sentence, but that’s — that’s not actually what he wrote. He wrote: “These allegations are make-weight and politically motivated. They do not involve espionage or theft and are, thus, not serious.” That’s — that’s his words. And he — he actually ascribes bad motives to us. He says the only reason we want to keep him in is so that he can’t defend himself, and he mentioned improper motives of the Bureau. I wasn’t quite following what he meant.

MR. CHESNOFF: Your Honor, could you ask him to stop? Like, suggest — enough is enough.

I wouldn’t call these “makeweight.”

It’s likely that close scrutiny of Smirnov’s ties to Russia in the conjunction of involvement in two information operations, to say nothing of his possible retroactive reporting to cover it up, made the charges necessary.

But it is also absolutely certain they would not have been charged if Wise had not used the FD-1023 to reopen the case against Hunter Biden and charge him with a bunch of felonies.

Wise seems to have believed, then, that he could bully his way through charges. And he seems to believe, here, that he can continue to do so.

But ultimately both problems stem from a stupid prosecutorial decision, one that didn’t take the difficulties of this case into consideration.

Update: Smirnov’s attorneys have posted a pretty reasonable release proposal, including a Special Master to prevent spending his millions and assurances from the Israeli consulate that they won’t reissue his Israeli passport.

Update: Judge Otis Wright granted the prosecution request for detention.

Premier Palace: The Risk of Non-Russian Involvement in Alexander Smirnov’s anti-Biden Election Operation

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Based on the transcript from the detention hearing, one reason Principal Senior Assistant Special Counsel Leo Wise failed to convince Nevada Magistrate Judge Daniel Albregts to detain Alexander Smirnov pretrial, is that in arguing Smirnov was a flight risk, Wise focused primarily on Smirnov’s ties to Russian intelligence, not other spy agencies.

That made it easier for Albregts to argue — repeating something Smirnov’s attorney, David Chesnoff, said — that Russian spooks are probably not too enamored of Smirnov right now, given the details included in court filings describing his reporting on Russian spies.

I — you know, I understand the concern about foreign intelligence agencies potentially resettling Mr. Smirnov outside of the United States/ his connections to them, but I think on some level that’s speculative as well because, as Mr. Chesnoff points out, I don’t know what Mr. Smirnov will be thought of in Russia/ but my guess is at this stage he probably thinks that’s not the most attractive place to go either if he was in fact inclined to go hide somewhere. So while I notice and note that that’s a concern and certainly raised by the Government that I should consider it, I just don’t know in the context of what’s happened in the last couple of weeks with his arrest and everything else that that is as grave a concern as the Government outlines.

This misunderstands the implied relationship of Smirnov to the Russians. For example, while Wise notes that Smirnov is not charged with spying (he’d have a tough time charging Smirnov with acting as a foreign agent without informing the Attorney General, given that the then-Attorney General was gleefully cheering what he was doing when he allegedly lied), he insinuates that Smirnov’s charged 2020 lie was part of a Russian influence operation.

MR. WISE: Understood, Your Honor. The defendant’s lies in this case have captured the national imagination. And while the — while the filing says they do not involve espionage, of course the charges do involve foreign intelligence services. The defendant claims to have met with Russian intelligence agencies on multiple occasions, and the U.S. intelligence community has concluded that Russian intelligence interfered in the 2020 election and continues to interfere in our elections by spreading misinformation.

What Wise didn’t emphasize, but which is no doubt the source of urgent concern, is that it’s not just Russian intelligence. As Wise addressed the limits of US extradition authority, he briefly noted there were other countries that, like Russia, would refuse to extradite Smirnov.

MR. WISE: These contacts make this defendant different from other defendants who merely have foreign ties, and they heighten the risk of flight dramatically. And that is because he can use these contacts with foreign intelligence services to flee and to resettle overseas, something I would again venture to say is almost unique in the presentation of a defendant being considered for the pretrial release.

THE COURT: So let’s say that happens. You don’t think that the Federal Government would have the ability to find him and take action to bring him back? You think that these Russian ties that you’re talking about are the type of people that would literally take him and secrete him from prosecution?

MR. WISE: If he were to resettle in Russian, we couldn’t extradite him. Russian won’t extradite under thesecircumstances. If he were to resettle in other — in third countries, we couldn’t extradite him. And so, yes, I think that is the case.

THE COURT: All right. Go ahead. I’ll —

MR. WISE: That’s even assuming we could find him. That’s even assuming we could find him.

For a dual Israeli citizen like Smirnov, those countries would, by law, include Israel. CNN reported last week that the FBI knew that Smirnov has also served as a source for Israel.

And while this is changing, those countries that would refuse extradition also likely include UAE, almost certainly another of the countries where Smirnov has been hanging out on mega yachts with Russian oligarchs.

Most of the details of Smirnov’s recent activity that David Weiss’ team chose to burn — and so the things that Albregts saw and Los Angeles Judge Otis Wright also received in their detention motion — does pertain to Russia.

The government put that reporting out of order in the detention memo, which obscures the timeline. I’m going to do the same, so as to first show the picture of Russian ties the government establishes. But as I’ll get to, those ties are built on two other relationships, relationships in Ukraine and Israel, that are critical to understanding Smirnov’s Russian relationships. [Note: I’ll be linking to the NV detention memo rather than the LA one; the declassified descriptions of his reporting are the same in both, but probably because of page limits, the LA one does not have most of the discussion about how Weiss intends to prove the case against Smirnov, which appears on pages 8-15 of the NV one.]

Here’s most of the timeline Smirnov gave his handler of how, along with discussing a way to end the Ukraine war, he also learned of a kompromat effort probably intending to use deep fake recordings of Hunter Biden. Note that the really interesting discussions post-date the September 27, 2023 FBI interview (marked in bold) at which Smirnov backtracked off some parts of his 2020 story and offered up details of another kompromat plan targeting the Bidens, which he already sourced in September 2023 to four Russian spies.

  • August 2023: Smirnov “had been introduced” to RI 2 (the unclassified report does not say, by whom), who was organizing a birthday party on his mega yacht that RO 2 would attend. At that point, the ties between two or three of the oligarchs involved and RO 2 are not yet clear.
  • September 27, 2023: Smirnov interviewed by different FBI agents, to whom he describes Premier Palace plan.
  • October 2023: Smirnov scores an invite to the birthday party on a Russian oligarch’s yacht in a Middle Eastern country (probably UAE). RO 1 and RI 1 were expected to attend.
  • October 2023: RO 1 is expected to attend the birthday party; Smirnov got a copy of RO 1’s passport.
  • November 2023: Smirnov has now met RO 1. RO 1 boasted that he has direct access to the “highest levels of the Russian government.” RO 1 is a top, unofficial representative to Country B. Smirnov got a picture of RO 1 in November 2023, while he was in Country A (meaning RO 1 stayed past the birthday party).
  • November 2023: RO 1 described the assassin teams in Ukraine, and offered to stop those efforts if Ukraine would stop targeting civilian family members of Russian officials living in Moscow. RO 1 also told Smirnov of plans for a winter attack in Ukraine and its intentions for that war.
  • December 2023: Smirnov attended a meeting at which RO 2 attended. The purpose of the meeting was to discuss a resolution to the Ukraine war. He had a separate conversation in which RO 1 told him about the kompromat operation at a “club” in a particular Ukrainian hotel, probably the Premier Palace. He explained they might use kompromat from the hotel in an election year operation. A Ukrainian government official later confirmed that kompromat operation was common knowledge.
  • December 2023: RO 1 and others tell Smirnov that RO 3 is the representative of RO 4, now listed as the former head of a particular unit of Russian intelligence.
  • January 2024: Smirnov told his handler he’d be traveling to Country A (probably UAE) to discuss a prisoner exchange between Ukraine and Russia with RO 1. [my emphasis]

Here are descriptions of the kinds of Russians with whom Smirnov was partying on mega yachts in the Middle East:

Russian Official 1: Son of former high-ranking RU government official, controls two groups of assassins, a RU representative to another country, ties to a particular RU intelligence service.

Russian Official 2: High-ranking member of specific RIS central to discussions of ending the Ukraine war. He has ties to both RI 1 (the senior member of a defense conglomerate) and RI 2 (the senior member of a RU steel company).

Russian Official 3: The representative of Russian Official 4.

Russian Official 4: Head of a particular unit of a RU intelligence service, ran a kompromat operation at a hotel, probably Premier Palace.

Russian Official 5: A Russian spy that Smirnov helped to flip for Country D, probably Israel. In 2019, RO 5 expressed some opposition to Putin.

Russian Official 6: RO 5 had familial ties to RO 6, a former high-ranking member of a Russian intelligence service. In 2019, RO 5 told Smirnov that RO 6 was also not happy with Putin, and said he RO 6 was close friends with RO 2.

Russian Individual 1: A high ranking member of a RU state-owned defense conglomerate.

Russian Individual 2: A high-ranking member of a RU steel company — the guy who owns the mega yacht that was in a Middle Eastern country in October 2023.

According to the timeline of reporting to his handler, Smirnov was just learning about the assassin teams in November and the Premier Palace kompromat plan in December, both from Russian Official 1, whom he describes first meeting in November.

But as the indictment describes, after Smirnov reportedly stood by all his reporting in a conversation with his handler in July 2023, when his FD-1023 first got released, in August, the handler turned over a bunch of things that made it clear Smirnov was lying.

43. On August 29, 2023, FBI investigators spoke with the Handler in reference to the 2020 1023. During that conversation, the Handler indicated that he and the Defendant had reviewed the 2020 1023 following its public release by members of Congress in July 2023, and the Defendant reaffirmed the accuracy of the statements contained in it.

44. The Handler provided investigators with messages he had with the Defendant, including the ones described above. Additionally, the Handler identified and reviewed with the Defendant travel records associated with both Associate 2 and the Defendant. The travel records were inconsistent with what the Defendant had previously told the Handler that was memorialized in the 2020 1023. The Defendant also provided email communications with both Associate 2 and Burisma personnel beginning in 2017 to the Handler, which the Handler reviewed with the Defendant and shared with FBI investigators. [my emphasis]

Remember: Scott Brady testified that they asked the handler about travel information in 2020 and (while Brady refused to address the particulars on follow-up), the result of that was a determination that the travel records corroborated the claim.

Mr. Brady. So we attempted to use open-source material to check against what was stated in the 1023. We also interfaced with the CHS’ handler about certain statements relating to travel and meetings to see if they were consistent with his or her understanding.

Q And did you determine if the information was consistent with the handler’s understanding?

A What we were able to identify, we found that it was consistent. And so we felt that there were sufficient indicia of credibility in this 1023 to pass it on to an office that had a predicated grand jury investigation.

Someone, or someones, are lying about the travel records corroborating Smirnov’s claims, either Brady and/or the handler.

Chesnoff — Smirnov’s lawyer — seems to plan to bring this handler down with Smirnov, because he revealed that Smirnov and the handler communicated via the handler’s private phone.

I can tell you. Your Honor, that there will be a vehement defense to the argument that in fact he was not truthful. He had this personal relationship with the handler. It was so personal, Your Honor, that he wouldn’t even call him on his FBI phone; he would call him on his personal phone. So we’re going to dig down once we start defending this case and we’re going to find out who knew what when.

We may yet learn that all the texts in the indictment showing that Smirnov explicitly responded to a story about Andrii Derkach manufacturing dirt by slamming Joe Biden happened on the handler’s phone.

Given what I know of David Weiss’ sawdust-as-cocaine clown show thus far, my guess is they haven’t actually nailed down what this handler knew when, and what he meant when he said, “that would be a game changer.”

Indeed, what appears to have happened is that either the handler warned Smirnov or (more likely) Smirnov figured out, as his lies started crumbling in his September 2023 interview, that his story was in trouble, so tried to throw out new information to Weiss’ team to “help” their criminal investigation of the President and his son.

After the indictment describes the many things Smirnov said in his September 27 interview that thoroughly discredited the story, he describes Smirnov telling Weiss’ team that he already knew of the Premier Palace kompromat and advising them they should check Hunter Biden’s travel records, which they didn’t have to do to know that the Premier Palace kompromat was based on a lie.

51. The Defendant also shared a new story with investigators. He wanted them to look into whether Businessperson 1 was recorded in a hotel in Kiev called the Premier Palace. The Defendant told investigators that the entire Premier Palace Hotel is “wired” and under the control of the Russians. The Defendant claimed that Businessperson 1 went to the hotel many times and that he had seen video footage of Businessperson 1 entering the Premier Palace Hotel.

52. The Defendant suggested that investigators check to see if Businessperson 1 made telephone calls from the Premier Palace Hotel since those calls would have been recorded by the Russians. The Defendant claimed to have obtained this information a month earlier by calling a high-level official in a foreign country. The Defendant also claimed to have learned this information from four different Russian officials.

53. The Defendant told investigators that the four different Russian officials are all top officials and two are the heads of the entities they represent. These Russians said that conversations with Ukrainians about ending the war will include the next U.S. election. The Defendant told investigators he is involved in negotiations over ending the war and had been for the previous four months. According to the Defendant, the Russians want Ukraine to assist in influencing the U.S. election, and the Defendant thinks the tapes of Businessperson 1 at the Premier Palace Hotel is all they have. The Defendant told investigators he wants them to ask Businessperson 1 how many times he visited and what he did while at the Premier Palace Hotel.

54. Businessperson 1 has never traveled to Ukraine. The few Burisma Board meetings that Businessperson 1 did attend were all outside of Ukraine. [my emphasis]

In an effort to claim he was getting useful information about Hunter Biden, then, Smirnov offered up the Premier Palace story and sourced it, already, to four top Russian officials.

It’s totally unclear what Smirnov told his hander. Weiss’ team might be hiding that intentionally, or it may be the case that Smirnov didn’t tell his handler that he was involved in another election influence operation until months later, sourcing it from Russian spies he had or claimed to have met in the interim. But the record at least implies that he told Weiss’ team about the assassination teams and the Premier Palace in September, then found a way to source it anew over the next several months to RO 1, whom Smirnov claimed to have met for the first time on some oligarch’s yacht in October.

In the same interview, Smirnov also claimed that, sometime no later than 2016, he developed ties with Viktor Shokin and Petro Poroshenko.

50. The Defendant told investigators that he had asked the then-Ukrainian President to arrange a meeting between himself and the then-Ukrainian Prosecutor General to talk about Burisma. The Defendant told investigators that this meeting occurred before the then-Ukrainian Prosecutor General resigned, which was early 2016. The Defendant also told investigators this meeting occurred before his meeting with Burisma Official 1 in the coffee shop in a German speaking country. The Defendant told investigators that after he met with the thenUkrainian Prosecutor General, he met with the then-Ukrainian President. The Defendant did not provide any of this information to the Handler in 2020.

With all that in mind, consider the rest of the timeline, the stuff that happened (or that Smirnov claimed happened) before the reporting laid out above.

  • 1992 to 2006: Smirnov lives in Israel, where his family still lives.
  • 2002: Smirnov helps flip RO 5 at the behest of Country D (probably Israel).
  • October 1, 2010: Smirnov starts to serve as a source for the FBI.
  • 2016 or earlier: Smirnov has direct communications with Shokin and Petro Poroshenko.
  • 2019: Smirnov first tells his handler about flipping RO 5 in 2002.
  • January 2022: RO 5 set up a meeting helped introduce Smirnov to RO 2. Then, Smirnov set up a meeting between RO 2 and a high-ranking official of Ukraine.
  • January 2022: Smirnov asked RO 2 for a favor — to protect a Ukrainian associate during any Russian invasion. RO 2 told Smirnov that based on RO 5’s representation that Smirnov was a “good guy,” he’d protect Smirnov’s associate. (Note that the FD-1023 described that Alexander Ostapenko, the guy who introduced Smirnov to Burisma, worked in the Zelenskyy administration.) RO 2 also told Smirnov that there was a 99% chance that, rather than full-blown war, the invasion would only be a skirmish.
  • February 2022: Smirnov provides his handler the back story to his relationship with RO 5 and through him RO 2. When working in Country D (probably Israel) in 2002, Smirnov helped flip two spies, including RO 5, for Country D. Country D had caught RO 5 spying, but gave him 48 hours to leave the country rather than expelling him. RO 5 continued to provide Smirnov intelligence, but never anything adverse to Russia. In 2019, RO 5, whose wife is related to a former Russian spook, RO 6, had described what Russia might look like under different leadership. Smirnov never met RO 6, but once spoke to him briefly over a car speaker phone.
  • February 28, 2022: Smirnov’s partner buys a condo in Las Vegas, using his money, for $1,425,000.
  • December 2022: A RU spy (not any of the identified ones) tells Smirnov the identity of a Russian spy living outside of RU.
  • January 2023: Smirnov confirms, from a different non-identified RU spy, the first name of the RU spy living outside of RU.
  • May 2023: Smirnov participates in discussions to end the Ukraine war
  • By September 2023: Smirnov already claimed knowledge of the Premier Palace kompromat, sourcing that knowledge to four RU Officials, almost certainly one he described meeting in later months.

In other words, there are a bunch of things that lie behind all the reporting about parties with Russian oligarchs on yachts in (probably) UAE that Weiss’ team burned.

First, Smirnov’s entrée into Russian intelligence came by helping someone — probably Israel — flip RO 5, years ago, back in 2002. Smirnov may have thought he had flipped RO 5, but RO 5 never gave him any intelligence about Russia. In other words, in the process of flipping RO 5 for a country that likely is Israel, Russia learned that Smirnov was in the business of flipping people, and strung him along for years.

Smirnov allegedly lied about conversations with Zlochevsky in 2016 that implicated Joe Biden. But his currently operative story is that he had ties with Viktor Shokin from that period — someone who was absolutely central in the 2020 influence operation. It’s not clear that Smirnov ever revealed that to his handler, which surely would have changed the import of those texts sent in response to a story claiming there were secret recordings about Shokin’s firing.

That’s not the only important Ukraine tie. In January 2022, as Russia prepares to invade Ukraine, Smirnov used his tie to Russian spooks, the guy he thought he had flipped years before, RO 5, to meet RO 2. After brokering a meeting, Smirnov then asked for a favor, that Russia protect his associate when they invaded. Then, RO 2 lied about Russia’s intention.

That’s critical background to Smirnov’s claim to be involved in peace negotiations: His entire relationship with Russian spooks is built off a series of lies.

Then, finally, there’s the question of whether Smirnov retroactively provided reporting to cover up what he admitted to Weiss’ team in September: that for months, he had been part of an information operation that involved interfering in the US election and as part of that he had advance knowledge of a plan to frame Hunter Biden.

Again.

Weiss’ team has hinted that Smirnov’s entire relationship with Russian intelligence was built off that effort to flip RO 5 for another country, almost certainly Israel.

But they’re not telling us what they know, if anything, about Israel’s ongoing involvement with all this.

Hunter Biden’s Motions to Dismiss: The Technical Complaints

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As noted, yesterday Hunter Biden filed eight motions to dismiss and a ninth motion to strike. Three of these — an immunity argument, a claim that David Weiss was not eligible to be Special Counsel, and a selective prosecution claim — are versions of MTDs filed in Delaware. A fourth argues that the disgruntled whistleblowers engaged in outrageous conduct.

The rest are technical complaints about the way David Weiss charged this. In combination, those motions to dismiss describe Weiss as having charged a scheme not to pay taxes that extended into the period of Hunter Biden’s sobriety, rather than a failure to pay taxes during the period of his worst addiction. If some or all of these motions succeed, it will chip away at much of the indictment against Hunter.

To understand how this works, consider a detail from the filing arguing that the statutes of limitation for one of the charges, pertaining to 2016, have expired. It notes that the indictment charges 2016 as a failure to pay, rather than a failure to file.

Trying to avoid the SOL bar for Count 1, the prosecution alleges that Mr. Biden’s failure to pay his 2016 taxes did not occur until June 2020, when his accountants late-filed his 2016 returns noting an outstanding amount,

But that creates a problem, because if Hunter’s crime occurred in 2020, then all the evidence in the indictment regarding 2017 — and, Abbe Lowell argues, all the other tax years — is worthless.

Alternatively, the prosecution’s allegation that Mr. Biden’s alleged failure to pay first became willful in 2020 means all counts (all of which require the prosecution to prove willfulness) must be dismissed for failure to state an offense pursuant to Federal Rule of Criminal Procedure 12(b)(3)(B)(v). This is because the prosecution would be conceding that its allegations of Mr. Biden’s knowledge and failure to meet his tax obligations in 2017 are insufficient to allege willfulness. (See Indict. ¶¶ 53–59 (alleging willfulness in 2020 when Mr. Biden late filed his returns based on the same or similar allegations of knowledge alleged in 2017).) And if the prosecution concedes that the facts in 2017 do not allege willfulness, it must agree the same allegations do not allege willfulness any other year.

In short, the prosecution cannot escape its dilemma. If it asserts, consistent with the allegations in the Indictment, that Mr. Biden willfully refused to pay his taxes when they were due on April 18, 2017, then Count 1 is barred by the SOL. If the prosecution instead claims that Mr. Biden did not willfully fail to pay until he filed his returns in 2020, then it relies solely on allegations it agrees are insufficient to allege willfulness in 2017, which requires dismissal of all counts for failure to state an offense pursuant to Rule 12(b)(3)(B)(v) since all counts relay on the same evidence. And if the prosecution refuses to clarify its position on willfulness one way or another, then the Indictment fails to meet the specificity requirements of Rules 7(c) and 12(b)(3)(B)(iii). Thus, while the prosecution may, in its opposition, pick its poison, either Count 1 or all counts must be dismissed.

Lowell describes a similar problem in the duplicity filing. Prosecutors are simultaneously claiming that Hunter failed to pay his taxes in the tax year in question and in the year he filed — 2018 and 2019, as well as 2020.

Count 2 charges Mr. Biden with willfully failing to pay income taxes due on April 17, 2018 and February 18, 2020 for the same tax year, while Count 4 charges Mr. Biden with willfully failing to pay income taxes due on April 15, 2019 and February 18, 2020 again for the same tax year.

And there’s another problem with the 2019 taxes: COVID. Lowell argues that because Hunter has since paid the 2019 taxes that would have been due while the government was providing COVID restrictions, that count is itself problematic.

Among the collection procedures implemented, “[s]ome individual taxpayers who only owe for the 2019 tax year and who owe less than $250,000 may qualify to set up an Installment Agreement without a notice of federal tax lien filed by the IRS.”1 (Ex. A) Other terms included that the IRS would offer “flexibility for some taxpayers who are temporarily unable to meet the payment terms of an accepted Offer in Compromise.” For the 2019 tax year, Mr. Biden had a self-assessed tax due of only $197,372, so he was in the range of taxpayers who were not being targeted for criminal enforcement.

Moreover, a records search indicates that, at the time, the IRS chose not to file a notice of federal tax lien2 regarding Mr. Biden’s 2019 taxes, even though Mr. Biden did not formally seek such relief under the IRS’s COVID-19 program.

This is less persuasive: the described leniency is for those who are otherwise current. Hunter wasn’t in 2020. Still, it makes the decision to charge 2019 all the more problematic.

Which seems to be the point of the surplussage filing, which is not a motion to dismiss, but instead a request for Weiss to lose the salacious commentary about Hunter’s lifestyle.

Moreover, the Indictment includes numerous allegations about Mr. Biden’s finances at irrelevant times, such as 2020 when he late filed his tax returns. (DE 1 at 55.) As Mr. Biden explains in the contemporaneously filed Motion to Dismiss Count I, the fact Mr. Biden’s accountants late filed his past returns in 2020 does not render the 2020 filing date any sort of legal payment or filing deadline. See Motion to Dismiss Count I at 10. Therefore, even if allegations about Mr. Biden’s finances had any relevance, allegations about his finances long after he is accused of committing the charged offenses are irrelevant and present a high risk of prejudice and jury confusion

Lowell also complains that prosecutors made a big deal about where Hunter got money from.

Finally, the Indictment includes a whole section of allegations related to incoming payments to Mr. Biden from different sources that it alleges indicate Mr. Biden’s ability to pay his taxes at various times. (DE 1 at 29 – 30.) As noted, Mr. Biden’s ability to pay is irrelevant to his intent to pay taxes or file returns and the Court should therefore strike these allegations as well.

By excluding such allegations (except for 2018, where payments to sex workers are key to claims of improper business deductions), Lowell would exclude a lot of what would draw the dick pic sniffers, if this goes to trial.

Finally, there’s a bigger technical complaint: for all years but 2019, Hunter (claims he) wasn’t a California resident.

With respect to failure to pay claims (Counts 1, 2, and 4), the CTM explains “a person required to pay a tax must pay the tax at the place fixed for filing the return” and “[v]enue would therefore normally be in the district in which the return was filed.” CTM Section 10.06[5] (2024). That is because if the return is not filed on time, the prosecution “normally would [charge] failure to file rather than a failure to pay.” Id. Counts 1, 2, and 4 allege Mr. Biden failed to file his returns on time, yet the prosecution nevertheless proceeded with failure to pay charges. More specifically, Count 1 alleges Mr. Biden willfully failed to pay his 2016 taxes by April 18, 2017, Count 2 alleges Mr. Biden willfully failed to pay his 2017 taxes by April 17, 2018, and Count 4 alleges Mr. Biden willfully failed to pay his 2018 taxes on April 15, 2019.

The CTM explains that, for failure to file claims, the district “in which the taxpayer was required to file a return for the year at issue” is where “the crime was committed.” CTM Section 10.05[7] (2024). For individuals, tax returns must be filed in the district in which the taxpayer lives. Id. Count 3 of the Indictment alleges Mr. Biden failed to file his 2017 returns by the extended deadline of October 15, 2018.

As noted, Mr. Biden moved to California in the summer of 2019, which the prosecution knows. Because the Indictment alleges Counts 1-4 occurred before then when Mr. Biden was living outside of California and was required to file and pay his taxes outside of California, venue is not proper in California for those charges, and they must be dismissed from the Indictment pursuant to Federal Rule of Criminal Procedure 18.

This is certainly true of 2016 and 2017.

If these technical filings succeed — and some of them seem quite clear — it will chip away at much of the indictment (though may result in charges in DC).

Technical filings

Untimely

Duplicity

Specific selective prosecution (2019)

Machala declaration

IRS announcement

IRS Covid announcement

IRS Covid announcement 2

Venue

Surplussage

Machala declaration

Indictment

David Weiss Is a Direct Witness to the Crimes on Which He Indicted Alexander Smirnov

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On the day that Bill Barr aggressively intervened in the parallel impeachment inquiry and Hunter Biden prosecutions last summer, David Weiss’ office sent out a final deal that would resolve Hunter’s case with no jail time and no further investigation. Within weeks, amid an uproar about claims in an FD-1023 that David Weiss now says were false, Weiss reneged on that deal. With the indictment yesterday of Alexander Smirnov, the source of those false claims, Weiss confesses he is a direct witness in an attempt to frame Joe Biden, even as he attempts to bury it.

On June 7, 2023, Bill Barr went on the record to refute several things that Jamie Raskin described learning about Smirnov’s FD-1023. Specifically, the former Attorney General insisted that the investigation into the allegations Smirnov made continued under David Weiss.

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.”

“It wasn’t closed down,” Bill Barr claimed. As I’ll show below, according to the indictment obtained under David Weiss’ authority yesterday, that’s a lie. “It was sent to [David Weiss] for further investigation,” Bill Barr claimed, not confessing that it was sent to Delaware on October 23, 2020, days after Trump had yelled at him personally about the investigation into Hunter Biden. According to Barr, Weiss was tasked with doing more investigation into the Smirnov claims than Scott Brady had already done.

In the Smirnov indictment, Weiss now says that he only did that investigation last year, and almost immediately discovered the allegations were false.

The same day the Federalist published those Barr claims, June 7, and one day after Hunter Biden attorney Chris Clark spoke personally with David Weiss, Lesley Wolf sent revised language for the diversion agreement that strengthened Hunter Biden’s protection against any further prosecution.

The United States agrees not to criminally prosecute Biden, outside of the terms of this Agreement, for any federal crimes encompassed by the attached Statement of Facts (Attachment A) and the Statement of Facts attached as Exhibit 1 to the Memorandum of Plea Agreement filed this same day.

That language remains in the diversion agreement Leo Wise signed on July 26, 2023.

According to an unrebutted claim from Clark, on June 19, 2023, Weiss’ First AUSA Shannon Hanson assured him there was no ongoing investigation into his client.

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.

That day, June 19, was the first day Wise made an appearance on the case.

On July 10, a month after the former Attorney General had publicly claimed that his office sent the Smirnov FD-1023 to Weiss’ office for further investigation in 2020, Weiss responded to pressure from Lindsey Graham explaining why he couldn’t talk about the FD-1023: “Your questions about allegations contained in an FBI FD-1023 Form relate to an ongoing investigation.” The next day, Hanson fielded a request from Clark, noting she was doing so because “the team” was in a secure location unable to do so themselves. “The team” should have had no purpose being in a secure location; they should have been preparing for the unclassified plea deal.

By July 26, the same day Leo Wise signed a diversion agreement that said Hunter wouldn’t be further charged, he made representations that conflicted with the document he had signed, claiming Hunter could still be charged with FARA. That was how, with David Weiss watching, Wise reneged on a signed plea deal and reopened the investigation into Hunter Biden, leading to two indictments charging six felonies and six misdemeanors.

According to the Smirnov indictment, sometime in July (tellingly, Weiss does not reveal whether this preceded his letter to Lindsey Graham, whether it preceded the plea colloquy where Leo Wise reneged on a signed deal), the FBI asked Weiss’ office to help in an investigation regarding the FD-1023.

In July 2023, the FBI requested that the U.S. Attorney’s Office for the District of Delaware assist the FBI in an investigation of allegations related to the 2020 1023. At that time, the United States Attorney’s Office for the District of Delaware was handling an investigation and prosecution of Businessperson 1.

It is virtually certain that the FBI asked Weiss to pursue whether any leads had been missed in 2020, not whether Joe and Hunter Biden had been unfairly framed. That’s because Weiss cannot — should never have — led an investigation into how the Bidens were framed. He’s a witness in that investigation. 

So it is almost certain that the FBI decided to reopen the investigation into the FD-1023, perhaps based in part on Bill Barr’s false claims. It is almost certain that this investigation, at that point, targeted Joe and Hunter Biden. It is almost certain that this is one thing Weiss used to rationalize asking for Special Counsel authority.

And that’s probably why, when Weiss’ team interviewed Smirnov on September 27, Smirnov felt comfortable adding new false allegations.

51. The Defendant also shared a new story with investigators. He wanted them to look into whether Businessperson 1 was recorded in a hotel in Kiev called the Premier Palace. The Defendant told investigators that the entire Premier Palace Hotel is “wired” and under the control of the Russians. The Defendant claimed that Businessperson 1 went to the hotel many times and that he had seen video footage of Businessperson 1 entering the Premier Palace Hotel.

52. The Defendant suggested that investigators check to see if Businessperson 1 made telephone calls from the Premier Palace Hotel since those calls would have been recorded by the Russians. The Defendant claimed to have obtained this information a month earlier by calling a high-level official in a foreign country. The Defendant also claimed to have learned this information from four different Russian officials.

Smirnov seemingly felt safe telling new, even bigger lies. In his mind, Hunter and Joe were still the target! Again, that is consistent with the investigation into Hunter Biden being reopened based off Bill Barr’s public pressure.

According to the Smirnov indictment, David Weiss’ team found evidence that proves Bill Barr lied and Scott Brady created a false misimpression — the former, to pressure him — Weiss — and the latter, in testimony to Congress that was also part of the pressure campaign against the Bidens.

Compare Bill Barr’s claim made on the day when Weiss agreed that Hunter would face no further charges with what the Smirnov indictment states as fact. The Smirnov indictment says that Scott Brady’s office closed the assessment, with the concurrence of David Bowdich and Richard Donoghue, which is what Jamie Raskin said (though Raskin said Barr himself concurred).

40. By August 2020, FBI Pittsburgh concluded that all reasonable steps had been completed regarding the Defendant’s allegations and that their assessment, 58A-PG-3250958, should be closed. On August 12, 2020, FBI Pittsburgh was informed that the then-FBI Deputy Director and then-Principal Associate Deputy Attorney General of the United States concurred that it should be closed.

But Barr told the Federalist that it was not closed down, it was forwarded — by Richard Donoghue, days after the President yelled at Barr about this investigation (though he didn’t say that) — to David Weiss for more 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.”

Had it been forwarded to David Weiss for more investigation, had he taken those additional investigative steps Barr claims he was ordered to do, Weiss would have discovered right away the key things that proved Smirnov was lying, the claims that Scott Brady had claimed to investigate, the things that the Smirnov indictment suggest he newly discovered months ago.

According to Scott Brady’s testimony to Congress, his team asked Smirnov’s handler about things like travel records and claimed that it was consistent.

Mr. Brady. So we attempted to use opensource material to check against what was stated in the 1023. We also interfaced with the CHS’ handler about certain statements relating to travel and meetings to see if they were consistent with his or her understanding.

Q And did you determine if the information was consistent with the handler’s understanding?

A What we were able to identify, we found that it was consistent. And so we felt that there were sufficient indicia of credibility in this 1023 to pass it on to an office that had a predicated grand jury investigation. [my emphasis]

According to the Smirnov indictment, Weiss’ team asked the handler the same question — about travel records. Only, they discovered that Smirnov’s travel records were inconsistent with the claims the handler himself recorded in the FD-1023.

43. On August 29, 2023, FBI investigators spoke with the Handler in reference to the 2020 1023. During that conversation, the Handler indicated that he and the Defendant had reviewed the 2020 1023 following its public release by members of Congress in July 2023, and the Defendant reaffirmed the accuracy of the statements contained in it.

44. The Handler provided investigators with messages he had with the Defendant, including the ones described above. Additionally, the Handler identified and reviewed with the Defendant travel records associated with both Associate 2 and the Defendant. The travel records were inconsistent with what the Defendant had previously told the Handler that was memorialized in the 2020 1023.

Tellingly, when Brady was asked more specific questions about Smirnov’s travel records, his attorney, former Trump-appointed Massachusetts US Attorney Andrew Lelling, advised him, twice, not to answer.

Q And did you determine that the CHS had traveled to the different countries listed in the 1023?

Mr. Lelling. I would decline to answer that.

[snip]

Q The pages aren’t numbered, but if you count from the first page, the fourth page, the first full paragraph states, following the late June 2020 interview with the CHS, the Pittsburgh FBI Office obtained travel records for the CHS, and those records confirmed the CHS had traveled to the locales detailed in the FD1023 during the relevant time period. The trips included a late 2015 or early 2016 visit to Kiev, Ukraine, a trip a couple months later to Vienna, Austria, and travel to London in 2019. Does this kind of match your recollection of what actions the Pittsburgh FBI Office was taking in regards to this.

Mr. Lelling. Don’t answer that. Too specific a level of detail

Q You had mentioned last hour about travel records.

Did your office obtain travel records, or did you have knowledge that the Pittsburgh FBI Office obtained travel records?

Mr. Lelling. That you can answer yes or no.

Mr. Brady. Yes.

If Brady obtained those travel records, he would have discovered what Weiss did: Neither Smirnov’s travel records nor those of his subsource, Alexander Ostapenko, are consistent with the story Smirnov told.

o. Associate 2’s trip to Kiev in September 2017 was the first time he had left North America since 2011. Thus, he could not have attended a meeting in Kiev, as the Defendant claimed, in late 2015 or 2016, during the Obama-Biden Administration. His trip to Ukraine in September 2017 was more than seven months after Public Official 1 had left office and more than a year after the then-Ukrainian Prosecutor General had been fired.

[snip]

34. Further, the Defendant did not travel to Vienna “around the time [Public Official 1] made a public statement about [the thenUkrainian Prosecutor General] being corrupt, and that he should be fired/removed from office,” which occurred in December 2015.

Paragraph after paragraph of the Smirnov indictment describe how the travel records — the very travel records that the handler and Scott Brady claimed corroborated the allegation — proved Smirnov was lying.

The record is quite clear that Bill Barr and Scott Brady made false representations about activities that directly involved David Weiss in 2020.

And yet Weiss has been playing dumb.

Abbe Lowell made a subpoena request and a discovery request relating to these matters on November 15. Lowell not only laid out this scheme in his selective and vindictive prosecution claim, but he cited the Federalist story in which Barr lied. He cited these matters in his discovery request.

Rather than acknowledging that Weiss’ team had discovered evidence that proved the claims of Barr and Brady were misrepresentations, Weiss’ team lied about the extent of Richard Donoghue’s role — documented in a memo shared by Gary Shapley — in forcing Weiss to accept the FD-1023 on October 23, 2022.

Next, defendant alleges that “certain investigative decisions were made as a result of guidance provided by, among others, the Deputy Attorney General’s office.” ECF 58, at 3 n.4. In fact, the source cited revealed that the guidance was simply not to conduct any “proactive interviews” yet.

And now, on the eve of Abbe Lowell submitting a reply on his motion to compel and a selective prosecution and discovery request in California, David Weiss has unveiled a belated indictment proving that Lowell’s allegations were entirely correct. The indictment may well provide excuse to withhold precisely the discovery materials Lowell has been demanding for months, and it may create the illusion that Barr’s pressure led Weiss to renege on a plea deal. But it is a confession that there was an attempt to frame Joe Biden and his son in 2020.

What David Weiss discovered — if he didn’t already know about it — is that he was part of an effort to frame Joe Biden in 2020, an effort that involved the Attorney General of the United States. If Merrick Garland is going to appoint Special Counsels for these kinds of things, one should be appointed here, especially given that Donoghue required the briefing on the FD-1023 days after Trump personally intervened with Bill Barr.

But David Weiss can’t lead that investigation. He’s a witness to that investigation.

Update: Fixed how long it took Weiss to renege on the deal after Bill Barr’s false claim.

See Hunter Biden’s Eight Legal Chessboards for links to all the filings.