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Judge Mark Scarsi’s Quantum Theory of Murdered Contract Law

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As expected, Judge Mark Scarsi has denied Hunter Biden’s motions to dismiss.

This post will explain his interpretation of the diversion agreement and his invitation for additional briefing on what even he calls a “Schrödinger’s cat-esque construction of Defendant’s immunity under the Diversion Agreement.”

A follow-up post will show how three errors Scarsi made undermine his otherwise totally defensible decisions on selective and vindictive prosecution and outrageous conduct, in one case in a way that bears on the diversion agreement. Scarsi fails to come close to meeting his own rigorous evidentiary standard on two points, and on a third, Scarsi fails to adopt the legal standard he claims to rely on.

As you read these posts, keep three things in mind.

First, Scarsi issued this order 16 days before he said he would, which would have been April 17 (as noted, he has invited further briefing on a central point that he has nevertheless already ruled on).

Before he docketed yesterday’s order — an order that pointedly refused further briefing — Abbe Lowell filed a motion that addressed two issues Scarsi raised in last week’s hearing which are pertinent to Scarsi’s ruling. Scarsi hasn’t and probably won’t accept Lowell’s bid to file that motion, but it nevertheless was directly on point and, in my opinion, corrected claims that Scarsi reportedly made in last week’s hearing (one of which recurs in this opinion). And it was filed before Scarsi formalized his order rejecting Hunter’s motions.

Even before Judge Scarsi filed yesterday’s order 16 days before he said he would, he was (and remains) on a relentless pace to get this to trial quickly. Meanwhile, Judge Maryellen Noreika appears to be frozen in uncertainty about what to do about motions filed by Hunter. Versions of three of these motions to dismiss have been fully briefed in Delaware since January 30. During that period, Lowell submitted a request in Los Angeles asking Scarsi to hold off until Noreika ruled, because the diversion motion would properly be decided by Noreika, a request Scarsi denied. Then, on February 12, Lowell informed Noreika that Scarsi was not waiting on her decisions on MTDs filed first in her district, what I took to be a soft nudge asking her to rule quickly so she would rule first. In a March 13 status hearing, Lowell made the nudge much more directly, asking her to rule on the diversion agreement first, and do so quickly, noting that it was proper for her to rule given that Delaware contract law probably applied. These issues are relevant, among other reasons, because I think they make Scarsi’s order more vulnerable on appeal, an appeal that Hunter Biden probably would not, however, be able to make until after he were convicted.

More troubling, I have been wondering whether Noreika’s seeming paralysis was an attempt to wait out Scarsi to see what he did with these rulings. So Scarsi’s approach may end up influencing her even though several facts are differently situated before her, including one Scarsi relied on heavily.

Finally, in one place, Scarsi adopted the colloquial, rather than the formal logic meaning, of “begs the question.”

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. (my emphasis)

I’m normally pretty tolerant of this usage; I occasionally fail to avoid it myself. But given that I think Scarsi has adopted an incorrect meaning of the Schrödinger’s cat paradox in an order that adopted a crazy theory to deny Hunter’s immunity claim, I find it notable that he also used a term that, in formal logic, describes someone adopting premises that assume a conclusion to be true, to mean something else. Scarsi’s misuse of these two terms are badges of someone getting logic wrong.

Now to Scarsi’s interpretation that led him to analogize that Hunter Biden’s immunity from the prosecution Scarsi is rushing headlong towards trial is both dead and not-dead. In short, Scarsi ruled that the parties to the contract granting Hunter Biden immunity from this prosecution executed the agreement, but did not yet put it into effect (or performance). As he describes, “the Diversion Agreement is a binding contract but performance of its terms is not yet required.”

To get there, Scarsi first lays out that the legal standards to apply here are uncertain, both as to whether Delaware, US, or California contract law governs, and as to the standard to apply to diversion agreements.

Having rejected Lowell’s request to let Noreika rule first, he applies the Ninth Circuit standard for plea agreements, and only in the next paragraph lays out what should come first: an acknowledgment that the Ninth hasn’t yet applied the standards used for plea agreements to diversion agreements, but other circuits have and so he will here.

The parties have not identified, and the Court has not uncovered, binding circuit authority extending these interpretation principles to pretrial diversion agreements. But several other circuit courts have found diversion agreements analogous to plea agreements and construed them according to similar contract principles. E.g., United States v. Harris, 376 F.3d 1282, 1287 (11th Cir. 2004) (“[T]his court interprets a pretrial diversion agreement applying the same standards we would use to interpret a plea agreement.”); Aschan v. Auger, 861 F.2d 520, 522 (8th Cir. 1988) (applying contract principles, reasoning that “[t]he pre-trial diversion agreement is analogous to a plea agreement”); cf. Garcia, 519 F.2d at 1345 & n.2 (similarly analogizing a deferred prosecution agreement to a plea bargaining agreement). The Court perceives no meaningful distinction between plea and diversion agreements relevant to the application of these interpretation principles.

These contract law standards may actually matter; they may matter a lot, not least because Scarsi misrepresents the uncontested record about the plea deal that failed (which I’ll get to in my follow-up).

In any case, however, Scarsi claims to be adopting a standard that holds the government responsible for any imprecisions in a plea agreement.

Given concerns about the defendant’s constitutional rights at play, “the honor of the government, public confidence in the fair administration of justice, and the effective administration of justice in a federal scheme of government,” courts “hold[] the Government to a greater degree of responsibility than the defendant . . . for imprecisions or ambiguities in plea agreements” than they would a drafting party to a commercial contract. Clark, 218 F.3d at 1095 (internal quotation marks omitted). “As a defendant’s liberty is at stake, the government is ordinarily held to the literal terms of the plea agreement it made, so that the government gets what it bargains for but nothing more.”

Having adopted that standard but then having claimed that the diversion agreement is unambiguous, Scarsi then comes up with an interpretation that neither the government nor Hunter Biden have adopted, telling the parties to a contract that he knows better than them what they entered into.

[T]he Court does not reach Defendant’s argument that the Government should be estopped from denying the validity of the agreement or the Probation Officer’s approval. (Immunity Mot. 18–19.) The Diversion Agreement is unambiguous, and the Government’s position on its interpretation cannot change its meaning.

We now have three different interpretations of a diversion agreement that everyone claims is unambiguous. Schrödinger’s cat had just two states of being: dead and not-dead. Scarsi has given this diversion agreement three.

Scarsi’s version says the words “approval” and “execute” are doing different things in the diversion agreement, and while the agreement was executed by the only parties to it, because someone not a party to it did not approve it, the government is not yet required to fulfill the contract.

Approval and approved together appear in three places in the agreement: the provision defining the agreement’s term, (Diversion Agreement § II(1)); the provision defining the diversion period, (id. § II(2)); and the signature block designated for the Probation Officer, (id. at 9). Outside of definition provisions, the only place the agreement uses the approve word stem is in the signature block inviting a formal sanction by the Probation Officer. And obtaining the approval of the Probation Officer makes sense in the context of the agreement, as the parties contemplated as a term of Defendant’s performance his subjection to her supervision. (Id. § II(10)(a).) In other words, the supervision provision would be nugatory if the Probation Officer refused to supervise Defendant.6 The definition provisions require an approval, and the only place in the agreement to which the Court can look to divine the meaning of approval is the signature block for the Probation Officer, compelling an interpretation that ties approval to an act by the Probation Officer.

In contrast, the term execution appears twice in the Diversion Agreement: in the provision defining the diversion period, (id. § II(2)), and in a provision authorizing execution of the agreement in counterparts, (id. § II(18)). Consistent with the definition of execute, the counterparts provision circumscribes the acts of signing the agreement that might validate it; in other words, the parties agreed that signing the same copy of the agreement would have the same effect as signing different copies. Notably, the provision defining the diversion period uses both execution and approval together, indicating each has its own meaning: “The twenty-four (24) month period following the execution and approval of this Agreement shall be known as the ‘Diversion Period.’” (Id. § II(2) (emphases added).) As Defendant’s counsel admitted at the hearing, Defendant’s proffered interpretation would render the phrase “execution and approval” redundant in part. The contrast between sections II(1) and II(2) supports an interpretation that gives each word its own meaning; while “approval” triggers the agreement’s term, the diversion period begins only “following the execution and approval” of the agreement.

Having ruled that the government is wrong that Probation’s approval was precedent to approval to the contract, Scarsi then argued that her approval was precedent to performance, something that had to happen before the agreement went into effect. Prosecutors are wrong that the contract isn’t binding, Scarsi argues, but because probation didn’t also sign the diversion agreement, prosecutors are not yet required to grant Hunter the immunity the agreement grants him.

For this interpretation to end up with Hunter being fucked, Scarsi also has to reject Hunter’s argument that probation already did agree to supervise the diversion agreement before, unbeknownst to Hunter and Judge Noreika, after he and Leo Wise signed the diversion agreement, Delaware head of probation Margaret Bray refused to sign the diversion agreement itself.

The agreement is not reasonably susceptible to an interpretation that the Probation Officer could manifest her approval by issuing a pretrial diversion recommendation consistent with the Diversion Agreement, let alone by any means other than signature on the line reserved for her.9

9 Defendant’s argument would fail on its merits even if the Probation Officer could have manifested her approval by issuing a pretrial diversion report. Defendant submits that the Probation Officer provided a “letter to counsel . . . enclosing her recommendation in favor of the Diversion Agreement and copy of the Agreement.” (Immunity Mot. 18.) The report filed with this Court does not reference or attach a copy of the agreement at all. (See generally Machala Decl. Ex. 5.) That said, the report filed with the motion is incomplete and apparently redacted. Although some of the recommended conditions of pretrial diversion align with the conditions discussed in the Diversion Agreement, they do not mirror each other perfectly. (See, e.g., Machala Decl. Ex. 5 § 38(5) (requiring as a condition of pretrial diversion Defendant’s consent to entry into a criminal background check system, a condition not discussed in the Diversion Agreement).) Further, another document in the motion record indicates that the parties modified the Diversion Agreement after the Probation Officer issued her report in an effort to “more closely match” the report. (Clark Decl. Ex. T (providing July 20, 2023 revisions to Diversion Agreement); cf. Machala Decl. Ex. 5 (dated July 19, 2023).) The Court resists Defendant’s ouroboric theory that the Probation Officer manifested approval of an agreement the parties changed in response to the purported approval. Further, the Court doubts the Probation Officer manifested approval of the revised version of the Diversion Agreement passively by being party to an email circulating the updated draft. (See Clark Decl. Ex. T.) [my emphasis]

In doing so, Scarsi misrepresents the exhibit he relies on.

The parties and Probation have agreed to revisions to the diversion agreement to more closely match the conditions of pretrial release that Probation recommended in the pretrial services report issued yesterday. Attached, please find clean and redline versions of the diversion agreement.

The parties didn’t modify the diversion agreement after probation issued its report; the parties and probation did. And that agreement didn’t happen on that email thread. Scarsi simply invents probation’s passive participation in an email.

That is, to dismiss Hunter’s argument that probation gave approval for the agreement, Scarsi misstates the evidence before him. That’s pretty telling, because if probation did approve the deal (and Hunter had no indication until the same AUSA who wrote an email saying probation had approved it that Bray refused to sign it after Hunter and Wise had), then the immunity deal is in place. Scarsi doesn’t address something he did in the hearing, which is that it made sense for tax crimes to be immunized given the expectation that Hunter would soon plead guilty to misdemeanors (which is one of the two things Lowell addressed in his filing and which was obviously wrong when Scarsi said it), so he seems to cede that if the agreement did go into effect, he can’t be charged with tax felonies.

More importantly, there are several aspects of Scarsi’s interpretation he doesn’t address, having nevertheless denied the motion while inviting further briefing and misusing the term, “begs the question.”

Having severed the execution of the contract from its performance, Scarsi doesn’t consider what those two terms apply to, even though prosecutors can only perform one part of the agreement — the immunity — and probation can only perform another — the diversion supervision. Margaret Bray cannot perform the part that matters here, conferring immunity, but Scarsi has given her veto power over the government fulfilling a contract they entered.

It would seem that if Scarsi were applying the standard he claims to be using — “the government is ordinarily held to the literal terms of the plea agreement [in this case, diversion agreement] it made” — then those who executed the diversion agreement, the prosecutors, should be required to recognize the immunity they agreed to and which they are uniquely situated to deliver.

More importantly, the main reason why probation never revisited approving the diversion agreement is because prosecutors failed to go get her signature. They failed to do so because Hunter did not agree to the terms of the separate plea agreement after Leo Wise changed the terms of the immunity it offered in the hearing itself. As we’ll see, that’s a part of the factual record that Scarsi simply disappears, ignoring it even though prosecutors waived contest to it.

Mark Scarsi rushed to interpret this contract in a way neither party to it agrees with, but did so in such a way that frees prosecutors from the obligation Scarsi himself says they agreed to give. He did so while misusing the term “begs the question” and invoking a metaphor, Schrödinger’s cat, designed to describe an absurd state, while calling Hunter’s correct description of events he misrepresented an ouroboric theory.

Mark Scarsi may be right that the diversion agreement uses two terms to depict two different things, but in doing so, he has upended the authority over prosecutions and arguably misapplied the standard he claims to adhere to.

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.

Judge Mark Scarsi Orders Briefing on Whether David Weiss Is David Weiss

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I don’t think Judge Mark Scarsi is going to be very sympathetic to Hunter Biden’s arguments.

But I will give him this: The judge works quickly and attentively.

Just days after Hunter Biden submitted his reply briefs, Judge Scarsi noticed that Hunter’s attorney Abbe Lowell raised two issues in his replies to two technical motions to dismiss that Lowell had not raised in his original motions. Scarsi issued an order offering David Weiss the opportunity to file 5-page sur-replies to each and also ordered Lowell to submit three exhibits he mentioned if he wanted those to be considered as part of the record.

One new issue pertains to whether Weiss is estopped (pages 4-6) from arguing that Hunter was a resident in California in 2017 and 2018 after asserting he was a resident of DC in the DE tax information (I’m not convinced the record on that point backs Lowell).

A more interesting — but related one, one I have raised — has to do with whether two tolling agreements that Hunter signed with the US Attorney for Delaware and DOJ Tax Division apply in the case of an indictment obtained by Special Counsel David Weiss.

I. THE TOLLING AGREEMENTS DO NOT TOLL THE SOL BECAUSE THE SC IS NOT A PARTY TO THOSE AGREEMENTS

The SC’s reliance upon two tolling agreements with Biden is misplaced because the SC is not a party to those agreements. Those agreements are between Biden and the U.S. Attorney’s Office for the District of Delaware and the Tax Division at Main Justice (which acts through specific U.S. Attorney’s Offices). At the time Biden entered into these tolling agreements, he knew he was being investigated for tax violations by the U.S. Attorney’s Office for the District of Delaware, District of Columbia, and the Central District of California, but he entered tolling agreements only with Delaware. Venue and statute of limitations considerations would be unique as to each District.

Similarly, Biden did not enter into any tolling agreements with the SC, as no SC had even been appointed to investigate him when these tolling agreements were signed. The fact that the U.S. Attorney for Delaware David Weiss was subsequently appointed as SC—as opposed to someone else—does not mean the SC’s Office suddenly became a party to those prior agreements. The agreement is with the office, not the man (who did not sign these agreements in any event; AUSA Leslie Wolf signed on behalf of the Office and she is not a member of the Special Counsel’s Office). Weiss’s U.S. Attorney team is separate from his SC team, complete with distinct websites, email addresses (which they insist be used in place of their USAO addresses), stationary, and, more importantly, different responsibilities. Surely, the Delaware Office would not claim that such agreements become void whenever the U.S. Attorney leaves the office. Nor could anyone claim the State of Delaware would be a party to such an agreement if Weiss had become Attorney General of the state instead. Similarly, if John Doe had been named SC, instead of Weiss, there would be no basis for Doe to claim he inherited the tolling agreements entered into by Weiss or any other U.S. Attorney.

Tolling agreements are contracts, and the entry into those agreements by one U.S. Attorney’s Office does not typically bind other government entities absent language saying so. See, e.g., United States v. Viola, 562 Fed. App’x 559 (9th Cir. 2014) (Probation not bound by U.S. Attorney’s plea agreement); see also SOS Co. v. E-Collar Techs., 2017 WL 5714716, at *5 (C.D. Cal. Oct. 17, 2017) (tolling agreement did not apply to non-party that was not the alter ego of a party); Osman v. Young Healthcare, 2023 WL 2021703, at *7 (E.D. Va. Feb. 15, 2023) (tolling agreement with Department of Labor with respect to certain named plaintiffs’ claims did not extent to unnamed plaintiffs); United States v. FedEx Corp., 2016 WL 1070653, at *1 (N.D. Cal. Mar. 8, 2016) (finding tolling agreement with one company did not apply to a related company, even where government believed the agreement covered all related entities); Morning Star Packing v. Crown Cork and Seal, 2004 WL 7339592, at *7 (E.D. Cal. Aug. 3, 2004) (tolling agreements cannot be extended to new parties). The general rule is that agreements entered into by one U.S. Attorney’s Office binds only that office, unless stated otherwise. United States v. Annabi, 771 F.2d 670, 672 (2d Cir. 1985) (“A plea agreement binds only the office of the United States Attorney for the district in which the plea is entered unless it affirmatively appears that the agreement contemplates a broader restriction.”).2 Federal prosecutors in one office, for example, may prosecute a defendant who is immunized by an agreement with another office. See, e.g., Sertich, 649 F.3d 545, at *1 (ND Ind. Prosecution not barred by CDCA plea agreement); United States v. Laskow, 688 F. Supp. 851, 853 (E.D.N.Y. 1988) (finding EDNY prosecution not barred by CDCA plea agreement).3 What is good for the goose is good for the gander. The same rules that hold one U.S. Attorney’s Office not bound by plea agreements reached with other Offices mean that one Office cannot seek the benefits of tolling agreements reached by other Offices. Prosecutors should not be allowed to elect whether they are or are not bound by agreements between other Offices and defendants, depending on what suits them. Moreover, as with plea agreements and diversion agreements, any ambiguities in tolling agreements are construed in the defendant’s favor. See, e.g., United States v. Spector, 55 F.3d 22, 26 (1st Cir. 1995); United States v. Goyal, 2007 WL 1031102, *3 (N.D. Cal. Apr. 3, 2007).

2 The Diversion Agreement made with respect to Biden illustrates the difference. It provides: “This Diversion Agreement (the ‘Agreement’) is entered into between the United States of America, by and through the United States Attorney’s Office for the District of Delaware, and Robert Hunter Biden (“Biden”), collectively referred to herein as ‘Parties,’ by and through their authorized representatives.” (DA ¶1.) Thus, in the Diversion Agreement, the U.S. Attorney’s Office is executing the agreement on behalf of the United States. By contrast, the tolling agreements indicate that the party is the U.S. Attorney’s Office, but not the United States as a whole. Compare United States v. Sertich, 649 F.3d 545, at *1 (9th Cir. Oct. 24, 1995) (unpublished) (explaining an agreement that is confined to a particular U.S. Attorney’s Office binds only that office, as opposed to a more general agreement that binds the United States as a whole), with Thomas v. INS, 35 F.3d 1332, 1335 n.1 (9th Cir. 1994) (explaining an agreement made on behalf of the United States government, as opposed to a sub-part, applies to the government as a whole); United States v. Harvey, 791 F.2d 294, 301−03 (4th Cir. 1986) (explaining that an agreement entered into on behalf of the United States, as opposed to just a particular U.S. Attorney’s Office, binds the United States as a whole); see also Morgan v. Gonzales, 495 F.3d 1084, 1091 (9th Cir. 2007) (“As a general matter of fundamental fairness, promises made by the government to induce either a plea bargain or a cooperation agreement must be fulfilled. . . . A United States Attorney is authorized to enter into cooperation agreements and, in so doing, to make promises that are binding on other Federal agencies.”) (citations omitted).

3 By analogy, Andrea Gacki recently transitioned from her role as Director of the Office of Foreign Assets Control to being Director of the Financial Crimes Enforcement Network. It is difficult to imagine that anyone would think the agreements reached by OFAC under her watch no longer bind OFAC or that FinCEN is now bound by those OFAC agreements.

As I may follow-up, David Weiss is engaged in a number of such shell games, picking and choosing where his legal persons carry over and do not, and where his biological person can avoid accountability.

A far more urgent one than these tolling agreement pertains to discovery: Weiss seems to imagine that by becoming Special Counsel, he avoids discovery into materials held by or known to US Attorney David Weiss, including his conversations with (most pertinently) Los Angeles US Attorney Martin Estrada (who, after reviewing the merits of the case, decided not to join it), DC US Attorney Matthew Graves, and DOJ Tax Division (the last of which is a party to the tolling agreement). This is actually the opposite of how Jack Smith has operated and how the Crossfire Hurricane to Robert Mueller to Jeffrey Jensen inquiry operated with discovery, which carried over as one legal entity became another. I asked Weiss’ office some time ago whether they were adhering to the standard used by other Special Counsels but got no response.

It’s an interesting legal question, so I do look forward to Weiss’ legal commitment to a shell game.

Lowell did submit the three exhibits, which show Weiss withdrawing the plea offer, Chris Clark asking for time to consider it, and Derek Hines emailing the docket entry showing the request to withdraw the plea offer.

Update: I changed my mind, above. Lowell is absolutely right on the estoppel claim. The tax information filed in Delaware describes that Hunter’s residency was in DC in 2017 and 2018. It was signed by Leo Wise, so he can’t very well claim that he, personally, has not made that assertion before.

David Weiss Does Not Contest He Reneged on Hunter Biden’s Plea Agreement to Chase Russian Lies

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David Weiss has now had five opportunities to contest former Hunter Biden attorney Chris Clark’s declaration that on June 6, Weiss personally discussed language to provide Hunter immunity from further prosecution, and after that language was incorporated into the plea deal, on June 19, Weiss’ First AUSA told Clark that there was no ongoing investigation into the President’s son.

I requested to speak directly with U.S. Attorney Weiss, whom I was told was the person deciding the issues of the Agreement. Later that afternoon, on June 6, 2023, I spoke directly with U.S. Attorney Weiss. During that call, I conveyed to U.S. Attorney Weiss that the Agreement’s immunity provision must ensure Mr. Biden that there would be finality and closure of this investigation, as I had conveyed repeatedly to AUSA Wolf during our negotiations. I further conveyed to U.S. Attorney Weiss that this provision was a deal-breaker. I noted that U.S. Attorney Weiss had changed the deal several times heretofore, and that I simply could not have this issue be yet another one which Mr. Biden had to compromise. The U.S. Attorney asked me what the problem was with the proposed language, and I explained that the immunity provision must protect Mr. Biden from any future prosecution by a new U.S. Attorney in a different administration. The U.S. Attorney considered the proposal and stated that he would get back to me promptly.

Later that same evening on June 6, 2023, at or around 5:47 PM EST, AUSA Wolf emailed me proposed language for the immunity provision that read: “How about this- 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.” (Emphasis in original.)

[snip]

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.

David Weiss is silent about proof that he reneged on immunity agreement made in June

Weiss has filed five responses to Hunter Biden claims that address how Weiss reneged on this agreement to immunize the President’s son from any further prosecution:

None of them contest those two claims from Chris Clark: That David Weiss was personally involved on June 6 before Lesley Wolf sent language immunizing Hunter for everything “encompassed” by the plea and diversion, and that Shannon Hanson assured Clark on June 19 there were no ongoing investigations.

Instead, these filings simply shift focus temporally. The responses to the selective and vindictive claim focus on earlier negotiations to falsely suggest that David Weiss did not personally buy off on language sent out on June 6.

For example, in an email to defense counsel dated May 18, 2023, about “a potential nontrial resolution,” Document 60-6 at p. 2, the AUSA stated, “As I said during our call, the below list is preliminary in nature and subject to change. We have not discussed or obtained approval for these terms, but are presenting them in an attempt to advance our discussions about a potential non-trial resolution . . .” The following week, in an email to defense counsel dated May 23, 2023, Document 60-9 at p. 3, the AUSA stated, “As we indicated in our emails and discussions we did not have approval for a pre-trial diversion agreement. As you know, that authority rests with the US Attorney who ultimately did not approve continued discussions for diversion related to the tax charges.” In response to this email, defense counsel wrote, “Ok. My client has asked that I speak to you further. Are you able to speak? I may have some slight flexibility.” Far from an agreement or an agency determination that these charges should not be brought, as the defense suggests in their briefing, these discussions merely indicate the parties were engaged in plea discussions at the line prosecutor level and the AUSA repeatedly disclosed that such discussions were subject to review and approval by the U.S. Attorney. [emphasis original]

The response to the IRS agent claim argues that because Gary Shapley and Joseph Ziegler had “ceased to have any role in the investigation” when the actual charging decisions were made in September and December, their media campaign could not have caused the earlier decision to renege on the plea deal and endorse precisely their charging decisions.

Here, the defendant does not argue that Shapley and Ziegler used any law enforcement technique that resulted in the charges currently before the court. In fact, the conduct he complains of occurred after Shapley and Ziegler ceased to have any role in the investigation.

Never mind that the claim conflicts with a Joseph Ziegler affidavit, which claims that, “As seen in these emails, we have continued to assist and turnover the Hunter Biden casefile to the new team,” and the related emails showing him still handing off documents on September 1 (though given document metadata, Ziegler continued to access and release to Congress records after that). What matters are not the charging decisions made in September and December but the earlier decision to renege on the plea deal.

What matters is that when Leo Wise stated, on July 26, that prosecutors could bring FARA charges against Hunter Biden, he was reneging on the terms of the signed plea deal.

What matters is that when David Weiss told Lindsey Graham on July 11 that Alexander Smirnov’s FD-1023 was part of an ongoing investigation, he signaled that he had decided to renege on the plea deal even before the plea hearing to chase the claim that the President of the United States had received a bribe, and that decision had nothing to do with Maryellen Noreika’s concerns about the structure of the diversion agreement.

Indeed, Abbe Lowell submitted proof that that was the intent all along, to renege on the plea deal. Weiss had submitted a heavily redacted copy of a letter Chris Clark wrote in response to Weiss’ proposed way to address Judge Noreika’s concerns, claiming that it showed that prosecutors did not, as Lowell had claimed, immediately demand a felony plea. Weiss was right, to a point. At that point Weiss was not demanding felony pleas. In his selective and vindictive reply, a declaration, and a timeline submitted yesterday, Lowell explained that Weiss started demanding felony pleas later than that, on August 29.

After the exchange cited by DOJ where Biden rejected its counterproposals, DOJ informed Biden the deal was off and made clear it would accept or charge felonies during a meeting with Biden’s counsel on August 29, 2023.

But those same papers and the unredacted copy of Clark’s response letter in question showed what happened instead: David Weiss’ first response to the concerns Judge Noreika expressed at the plea colloquy — partly how the diversion agreement worked with the plea, but also Wise’s claim that he could charge Hunter with FARA even though Hanson had said that would not happen a month earlier — was to eliminate any judicial protection and remove the immunity language entirely.

Second, the Government has proposed, without explanation, completely deleting the immunity provision in Paragraph 15 of the Diversion Agreement. We decline to amend the parties’ existing agreement on immunity. We will rely on this provision, as contained in the bilateral agreement that was signed and entered into between the parties.

The same letter showed that Hunter’s team believed the diversion remained in effect.

[W]e are fully prepared to continue proceeding with the terms of the Diversion Agreement, as executed. If the Court should determine that the breach provision in Paragraph 14 of the Diversion Agreement should be amended, then we would be fine with that, and at such time we would entertain making formal, written modifications pursuant to Paragraph 19. Otherwise the parties remain bound to the terms of the agreement that was signed and entered into.

This “offer” Weiss made, then, amounted to torching the signed plea deal and diversion agreement entirely.

This is the background to — as Lowell described — Weiss’ demand that Hunter either accept that useless deal immediately, before — minutes later — Weiss rolled out his Special Counsel authority.

8/9/23: DOJ responds to Biden’s counsel’s August 7 letter, and argues that neither the PA nor DA are in effect, and neither side is bound. In that letter, DOJ withdraws the PA and the DA it offered Biden on July 31, 2023, and withdraws the PA and the DA presented to the Court on July 26, 2023.

DOJ notifies Biden’s counsel that it intends to move to dismiss the tax information without prejudice and pursue charges in another district where venue lies, and requests Biden’s counsel’s position by no later than August 11, 2023.

8/10/23: Biden’s counsel emails AUSA Wise to inform him they are discussing DOJ’s August 9 letter and the options with Mr. Biden. Biden’s counsel asks if they may respond to DOJ’s requested position by Monday (August 14) instead of by Friday (August 11). Alternatively, Biden’s counsel proposes having a conference with the Court.

8/11/23: At Noon (12:00 pm), AUSA Wise replies to Mr. Clark’s email that the United States declines to extend the time in which it asked for Biden’s position on the motions identified in its August 9 letter, and further declines to have a conference with the Court.

Approximately five minutes later, at 12:05 pm EST, before Biden’s counsel could even respond to DOJ or discuss it with Mr. Biden, DOJ moves to dismiss the criminal tax Information without prejudice against Biden, so that tax charges can be brought in another district.

David Weiss replaced Lesley Wolf, and by doing so, has tried to get away with letting Leo Wise and Derek Hines to renege on the terms of a plea deal he himself signed, as if his signature wasn’t on the deal.

And he did so, it is now clear, to chase a Russian information operation. David Weiss got his ass handed to him by Russian spies and to hide his embarrassment, he’s trying to claim that he didn’t renege on a signed plea.

Neither Weiss nor Lowell has yet addressed Smirnov directly

For reasons I don’t understand, Lowell has not filed any motion specifically addressing the role of Alexander Smirnov in all this, in either Delaware or Los Angeles. As a result, the sum total of discussion about the role of the Smirnov claim in Hunter’s prosecution consists of the following:

First, in Lowell’s Reply Motion to Compel in Delaware, he noted that he had asked for things pertinent to the Scott Brady side channel, and the treatment of the Smirnov allegations made that discovery all the more important.

The fact that Special Counsel Weiss, beginning in July 2023, then elected to chase the goose making these unsubstantiated claims— after several DOJ and FBI officials agreed the matter should be closed—is all the more justification for granting Mr. Biden’s request for these DOJ materials.

In response, Weiss tried to anticipate mention of Smirnov in Lowell’s Reply. imagining that because Weiss is prosecuting Smirnov, it debunks the claim Hunter made in his deposition that Congressional Republicans were duped by a Russian disinformation campaign.

He claimed, “Smirnov, who has made you dupes in carrying out a Russian disinformation campaign waged against my father, has been indicted for his lies.”12 While the defendant testified to Congress that the Special Counsel had undermined the impeachment inquiry conducted by House Republicans, to this Court he argues instead that the Special Counsel is working at the behest of House Republicans. Motion at 13. Which is it? Indeed, the defendant has no evidence to support his shapeshifting claims because the Special Counsel continues to pursue the fair, evenhanded administration of the federal criminal laws.

That same day, in Delaware, Lowell cited the newly-released Scott Brady transcript to argue that Weiss, by continuing to prosecute Hunter, is doing just what Russia wanted with the Smirnov operation: to gin up a prosecution of Hunter.

From the filings in Smirnov and other disclosures, it turns out that a Russian intelligence operation has the same goal of spreading disinformation to influence the U.S. presidential election in Russia’s favor.

[snip]

Mr. Wise explained that Smirnov’s “disinformation story” is part of a Russian intelligence operation “aimed at denigrating President Biden” and “supporting former President Trump.”

[snip]

This case illustrates the very continuing harm identified by the Special Counsel. The Special Counsel tells us Russian intelligence sought to influence the U.S. presidential election by using allegations against Hunter Biden to hurt President Biden’s reelection. 3 And what did the now-Special Counsel do? The Office abandoned the Agreement it signed and filed felony gun and tax charges against Mr. Biden in two jurisdictions, which public records and DOJ policy indicate are not brought against people with similar facts as Mr. Biden. In these actions, the Special Counsel has done exactly what the Russian intelligence operation desired by initiating prosecutions against Mr. Biden.

In yesterday’s filing in Los Angeles, however, Lowell was still pretty circumspect about Smirnov.

In the section describing how Weiss had reneged on a signed deal, he attributed Weiss’ decision to renege on the deal to his pursuit of the Smirnov allegations. Then, in the section on Congress’ usurpation of prosecutorial function, Lowell laid out how stupid it is for Weiss to claim the charges against Smirnov, over three years after Weiss first got this referral, is proof that Weiss didn’t bow to pressure from Congress.

DOJ also chooses this part of its brief to argue its indictment of Alexander Smirnov suggests it is not a puppet of the GOP (perhaps DOJ’s whole inspiration for bringing that indictment). (Id.) Biden never suggested DOJ is a puppet of the GOP, but that DOJ has caved to political pressure several times in ways that specifically violate Biden’s rights. And DOJ indicting someone who falsely accused Biden of serious crimes does not prove it is treating him fairly. Instead, it calls into question why DOJ reopened long debunked allegations by Smirnov in July 2023 (as it was reneging on its agreements with Biden) when, having gone down that rabbit hole, DOJ was then forced to defend its actions by charging Smirnov with offenses it could have bought years earlier.

Lowell doesn’t make several details of the timeline explicit.

First, on the same day that Weiss sent Lindsey Graham that letter stating that the FD-1023 was part of an ongoing investigation, July 11, Shannon Hanson described that “the team,” on which she did not include herself at that point, was in a secure location. As I’ve noted, there was no reason for “the team” to be in a SCIF in preparation for the plea deal. There’s nothing classified about it. It’s evidence that, before Wise reneged on the scope of the plea deal on July 26, “the team” had already decided to chase the Smirnov allegation.

My hunch is that we’ll learn that whatever Weiss told Merrick Garland about needing Special Counsel status (note, he bypassed Brad Weinsheimer to get it), he did not represent the plea negotiations as the current record suggests they happened. My hunch is that Weiss may have claimed Hunter was being a good deal more intransigent then simply demanding that a plea be worth the toilet paper it was written on in the first place.

But to get Special Counsel status, Weiss likely claimed he was going to investigate Joe Biden.

While it’s true that Garland assured Weiss he could get Special Counsel status whenever he asked, investigating the President is the only thing that presents the kind of conflict that would require full Special Counsel status. And, as I’ve noted, Weiss grounds his authority to prosecute Smirnov in the language in the Special Counsel appointment permitting him to investigate anything that comes out of the investigation authorized with the appointment itself, which must, then, have included Joe Biden as well as his son.

Lowell made this point in his Notice of Authority submitted in Delaware.

The connection between the reopening of the Smirnov allegations and the then-U.S. Attorney’s Office’s total rejection of the Agreement it made has, at the least, the appearance of catering to the shouts of extremist Republicans to scuttle the deal and keep an investigation into Mr. Biden alive.

But he has not done so in Los Angeles.

On August 29, prosecutors expressed overconfidence about their investigation

Lowell has declined to do so even though the timeline he lays out — how, on August 29, prosecutors demanded felony pleas — intersects closely with the Smirnov one. Lowell’s declaration describes that at 11AM on August 29 — in what appears the first meeting after Weiss got Special Counsel status and after Judge Noreika dismissed the tax indictment — Leo Wise fully retracted all offers that had been discussed to that point.

3. On August 29, 2023 at approximately 11:00 AM, I (along with my law partner, Christopher Man) met with Assistant United States Attorneys Leo Wise and Derek Hines at the U.S. Attorney’s Office in Wilmington, Delaware. The meeting lasted approximately one hour. Our position was that the Diversion Agreement was in effect, and we sought to work with the government to effectuate the substance of the proposed Plea Agreement by addressing the procedural concerns the Delaware court raised on July 26, 2023.

4. During that meeting, Mr. Wise stated, in sum and substance, that DOJ was no longer willing at this point in time to (i) carry out the misdemeanor tax agreement it had made; (ii) commit to a “no jail” recommendation for Mr. Biden that it also had made; and (iii) maintain the parties’ agreed-to immunity provision. While Mr. Wise said he was only in a “listening mode,” the only type of charge even mentioned at the meeting were felonies, which are exactly what the Office filed about two weeks later in the District of Delaware.

At that same meeting, Lowell requested that he get an exact copy of the laptop.

The defendant’s counsel met with government counsel in Wilmington on August 29, 2023, and made a specific request for an exact forensic copy of the laptop and external hard drive. His defense counsel reiterated this request in an email dated September 25, 2023, in which defense counsel stated “we want to ensure the data we receive is an identical copy as you have it and that the data will retain its native forensic properties (e.g., time and date stamps, file paths, operative system characteristics, user profile information, etc.)” and that the “data loaded on the hard drive is complete and identical in every shape and manner to that obtained by the FBI when it acquired possession” of the laptop and hard drive. The government accommodated this request.

And prosecutors also claimed (erroneously, it now appears) that they had clean sources for everything otherwise found on the laptop.

As to the meeting between Mr. Biden’s counsel and prosecutors in Wilmington on August 29, 2023 (Opp. at 19), Mr. Biden notes that prosecutors indicated, during that meeting, that they possess “independent sources” for any material on the laptop device that would be helpful to the prosecution’s case, presumably referring to material subpoenaed from third parties, such as Apple, Inc. or various cellphone carriers. For this reason, it was curious to Mr. Biden’s counsel when reviewing the prosecution’s response that it elected to cite to and quote from messages and photos contained on the device it possessed (lacking any Bates stamps) rather than from those “independent sources” included in the discovery produced to the defense.

That same day prosecutors mistakenly claimed they wouldn’t have to rely on the laptop to prosecute Hunter Biden, also on August 29, Smirnov’s handler described that he and Smirnov reviewed the allegations against President Biden after the FD-1023 leaked and Smirnov stood by his claims.

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.

Did representations from Smirnov’s handler contribute to prosecutors’ hubris in imagining they had all the evidence they needed against the President’s son? Did they initially pursue particularly draconian charges against Hunter in hopes they could get him to flip against his father?

At some point — the indictment doesn’t reveal whether the handler only came clean about Smirnov’s lies in the following weeks — Smirnov’s handler provided the messages and travel records that made it clear Smirnov was lying.

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.

On the day Weiss discovered Smirnov was lying, he should have called up Merrick Garland, told him he had to recuse from both the Smirnov investigation and — because of the apparent role of the Smirnov 1023 in his decision to renege on the plea agreement — even the Hunter Biden one. On that day, Weiss became a witness to a potential criminal conspiracy.

Weiss’ false claims about discovery into the side channel

Weiss did not do that.

Instead, at least in the months before the Smirnov indictment, he prevaricated over discovery.

On November 7, over a month after the FBI interviewed Smirnov and confirmed his lies, David Weiss told the House Judiciary Committee Chief Counsel Steve Castor that the side channel would only show up in his eventual report.

Q Brady told us that he had such trouble getting ahold of you and your office, that he had to go through the PADAG, and basically the PADAG had to intervene and instruct your office to take a meeting with him.

A Is that a question?

Q Yes. Why wouldn’t you meet with Mr. Brady?

A I’m not at liberty to discuss that at this time. I look forward to the opportunity to addressing this in the special counsel’s report at the appropriate time.

Weiss committed that Brady’s role in this would only appear in the final report after a number of details of Brady’s claims to have vetted the Smirnov claim — which Jerry Nadler referred to both Michael Horowitz and Merrick Garland for potentially criminal investigation — had been publicly aired.

Then, on November 15, Lowell asked for discovery that would cover the side channel and also permission to subpoena those, like Bill Barr, who continued to engage in discussions of the side channel as private citizens, without protection of prosecutorial immunity.

The response to the latter, written in December by then newly promoted “Principal Senior Assistant Special Counsel” Leo Wise, repeats Weiss’ silence about his decision to renege on the plea deal. Given the accumulating evidence that Weiss reneged on the plea deal in order to chase the Smirnov allegation, such silence is deafening.

It blows off the request for a subpoena to Bill Barr — who made public representations about the side channel the day after Weiss agreed to immunize Hunter against further investigation, the agreement on which Weiss reneged — by emphasizing that as former Attorney General, Barr could have no influence on Weiss’ actions.

Defendant asks the Court to enter an order directing subpoenas, which seek broadly worded categories of documents across seven years, to former President Donald J. Trump, former Attorney General William P. Barr, and two other former officials in the U.S. Department of Justice. Defendant contends that the requested material “goes to the heart of his pre-trial and trial defense that this is, possibly, a vindictive or selective prosecution that arose out of an incessant pressure campaign that began in the last administration, in violation of Mr. Biden’s constitutional rights.” ECF 58, at 14. It is worth noting from the outset that defendant misunderstands the difference between pretrial arguments to dismiss an indictment and trial defenses. It is black-letter law that claims of vindictive and selective prosecution are not trial defenses and may only be brought and litigated pretrial. They are not defenses and, therefore, are never argued to trial juries.

In any event, both vindictive- and selective-prosecution claims turn on the actual intent of the specific decisionmaker in a defendant’s case: here, the Special Counsel. But not only does defendant’s motion fail to identify any actual evidence of bias, vindictiveness, or discriminatory intent on the Special Counsel’s part, his arguments ignore an inconvenient truth: No charges were brought against defendant during the prior administration when the subpoena recipients actually held office in the Executive Branch.

And in response to the request for a subpoena to Richard Donoghue, the response noted that Donoghue ordered that, “the Delaware investigation receive the information from the Pittsburgh team, which was being closed out.”

Against this backdrop, the gaps in defendant’s motion become glaring: absent is any credible argument that (a) one of the subpoena recipients, rather than the Special Counsel, made the decision to prosecute the defendant and that the Special Counsel merely followed an order, or (b) that the Special Counsel himself has treated similarly situated individuals differently or decided to prosecute for discriminatory purposes. In fact, throughout the defendant’s entire constructed narrative, he barely refers to the actions or motives of the then-U.S. Attorney, nowSpecial Counsel, much less makes Armstrong’s “credible showing” of disparate treatment, discriminatory intent, or retaliatory motive on his part. Nor has defendant addressed the impact of the sitting Attorney General’s subsequent determination that, “to ensure a full and thorough investigation” of these matters, it was necessary to confer the additional jurisdiction and independence outlined in 28 C.F.R. § 600.04–600.10. See Order No. 5730-2023.

Defendant’s attempts to manufacture discriminatory treatment or intent on behalf of the U.S. Attorney fall apart under the most minimal scrutiny. First, defendant obliquely references that “IRS files reveal that [Richard Donoghue] further coordinated with the Pittsburgh Office and with the prosecution team in Delaware, including issuing certain guidance steps regarding overt steps in the investigation.” ECF 58, at 2-3 & n.3. Looking behind the defendant’s ambiguously phrased allegation reveals the actual “overt steps” involved: (1) the U.S. Attorney making an independent assessment of the probable cause underlying a warrant and (2) a direction by Mr. Donoghue that the Delaware investigation receive the information from the Pittsburgh team, which was being closed out. See ECF 58, at 3 n.3 (citing memorandum of conference call). Assessing the validity of a warrant and merely receiving information from other investigating entities does nothing to show any disparate treatment or animus. 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. Likewise, defendant’s last attempt to create a link involved guidance not to make any “external requests (outside of government),” which followed the long-standing Department of Justice policy to avoid overt investigative steps that might interfere with ongoing elections. See ECF 58, at 3 n.5; cf., e.g., Federal Prosecution of Election Offenses 40 (2d ed. 1980). In other words, the most defendant claims is that the Deputy Attorney General’s office was aware of and involved in some specific investigatory decisions in the most banal fashion possible—by waiting to take specific investigative steps at certain times out of caution.

None of these contacts or events provides any evidence involving either the disparate treatment of similarly situated individuals or a discriminatory intent behind the U.S. Attorney’s prosecutorial decision. [my emphasis]

The existence of the side channel alone is testament to disparate treatment of Hunter Biden. Importantly, Donoghue is a fact witness about what Weiss did in 2020.

The response to Lowell’s request for discovery on the side channel, a request that explicitly applied to the diversion agreement as well, was even more non-responsive. It simply ignores Bill Barr’s role entirely.

It’s the response to the subpoena that looks particularly damning, though.

As I’ve noted, there are some key gaps in the Smirnov indictment. First, in describing who set up the side channel in the first place, Weiss claimed Deputy Attorney General Jeffrey Rosen set it up, when Brady testified that Barr was personally involved (as Barr’s public comments make clear).

22. In June 2020, the Handler reached out to the Defendant concerning the 2017 1023. This was done at the request of the FBI’s Pittsburgh Field Office (hereafter “FBI Pittsburgh”). In the first half of 2020, the United States Attorney’s Office for the Western District of Pennsylvania (hereafter “USAO WDPA”) had been tasked by the Deputy Attorney General of the United States to assist in the “receipt, processing, and preliminary analysis of new information provided by the public that may be relevant to matters relating to Ukraine.” As part of that process, FBI Pittsburgh opened an assessment, 58A-PG-3250958, and in the course of that assessment identified the 2017 1023 in FBI holdings and shared it with USAO WDPA. USAO WDPA then asked FBI Pittsburgh to reach out to the Handler to ask for any further information about the reference in his 2017 1023 that stated, “During this call, there was a brief, non-relevant discussion about former [Public Official 1]’s son, [Businessperson 1], who is currently on the Board of Directors for Burisma Holdings [No Further Information]”

The silence about Barr’s role is particularly telling given persistent misrepresentations of Hunter Biden’s discovery asks about Barr.

More tellingly, the indictment doesn’t confess that Donoghue ordered Weiss to look at the FD-1023 in 2020, days after Trump called up Bill Barr and screamed at him for not investigating Hunter Biden more aggressively.

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.

Leo Wise’s description of this process at Smirnov’s first detention hearing was even more dishonest.

[T]he FBI in Pittsburgh took some limited investigative steps, but their steps were limited by the fact that they were only conducting an assessment, which under FBI policies is not an investigation. And it prevents, for instance, the use of compulsory process like grand jury subpoenas or the compulsion of testimony. So based on that limited review, the FBI closed its assessment in August.

Weiss has a problem.

He was ordered to investigate this in 2020, and did nothing, possibly because Lesley Wolf knew the entire side channel project was corrupt. But if that’s why Weiss did nothing in 2020, it makes his decision to renege on a plea deal to go chase this lead inexcusable.

He ignores his earlier receipt of this tip in the indictment to create the illusion that he investigated the FD-1023 for the first time starting in July.

But in the opposition for subpoenas in December, Leo Wise acknowledged that Donoghue issued that order in 2020.

Weiss is saying one thing in the Smirnov prosecution and saying something else in an effort to hide Smirnov discovery from Hunter Biden.

And he’s saying those conflicting things after telling Congress that Brady’s role in this would show up only in his closing report, and not in follow-up indictments for false claims to Congress.

Realistically, the investigation into how Smirnov allegedly framed Joe Biden should go in at least three directions: First, into Russia and Ukraine (and possiblyIsrael)’s specific role in his alleged lies, such as whether Andrii Derkach had ties to Smirnov in 2020. As part of that, the FBI will need to investigate why Smirnov didn’t disclose his earlier ties to Russian Official 5 to his handler, whom he flipped for a third country in 2002, until 2019.

The investigation needs to figure out how Scott Brady came to look for Smirnov’s earlier FD-1023 in the first place, because his claimed explanation makes no sense. It’s possible that arose from some mutual tie between Smirnov and Rudy Giuliani and could implicate Rudy personally. At the first Smirnov detention hearing, Wise at least mentioned Rudy Giuliani’s role in all this, suggesting Weiss’ team might fancy they’re pursuing that angle, at least. But they have no business doing so, because that implicates Weiss’ contacts with Brady. Again, he is a direct witness.

But just as importantly, the investigation needs to examine why Brady claimed the tip had been vetted in 2020, and why Brady created the impression with Congress that Smirnov’s travel records matched his claims, rather than debunked them. The investigation needs to examine whether Barr, or the indictment, is telling the truth about what Weiss was supposed to do with the lead in 2020. Neither Brady nor Barr are immunized as prosecutors anymore. And there’s no reason their attempts to influence the criminal investigation into Joe Biden’s son in advance of an election should evade scrutiny.

That goes right to the heart of why Weiss reneged on the plea deal. It goes to all the discovery and subpoenas that Weiss has already refused, claiming that it had no bearing on diversion or a vindictive prosecution claim. It goes to Weiss’ wildly unsound decision to remain on the case after he became a witness in it.

As it turns out, it has everything to do with Hunter’s diversion and vindictive prosecution claims.

Hunter Biden’s Replies to His Motion to Dismiss

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I was laughing that David Weiss’ prosecutors would get sloppy with Roger Stone references in a case I was covering closely. It got me two citations in Hunter’s reply on selective prosecution.

8 Stone, No. 21-cv-60825, DE 1 ¶¶ 40-53 (accusing Stone of seeking to shelter his wealth from criminal forfeiture); Bill Barr Repeatedly Lied, Under Oath, About Judge Amy Berman Jackson, https://www.emptywheel.net/; United States v. Stone, Case 1:19-cr- 00018-ABJ DE 260 (Verdict Form). It is particularly ironic that DOJ would try to use Biden’s gun charge under a statute expressly reserved to protect public safety—to justify criminal tax charges when only Stone was charged with endangering anyone.

9 DOJ acts like, rather than honestly describe his struggles, Biden published his memoir to brag about his crimes, which is particularly absurd considering the memoir mentions neither the gun he is accused of purchasing nor his failure to pay his taxes.

10 See Marcy Wheeler, David Weiss is Smoking Roger Stone’s Witness-Tampering Gun, Emptywheel (Mar. 11, 2024), https://www.emptywheel.net/2024/03/11/david-weiss-is- smoking-roger-stones-witness-tampering-gun/. This included an introduction repeating the false claims at the core of his 2019 convictions for threats and intimidation, and Stone even litigated whether his memoir was covered by the gag order the judge issued in response to his threats. See Stone, No. 1:19-cr-00018, DE61 (S.D. Fl.).

As I’ll lay out later, it’s now crystal clear that David Weiss reneged on the plea deal in order to chase Alexander Smirnov’s lies.

Here are the reply motions:

David Weiss Is Smoking Roger Stone’s Witness-Tampering Gun

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On Friday, David Weiss submitted most of his responses to Hunter Biden’s Motions to Dismiss in the Los Angeles tax case (he should submit a response to Hunter’s claim that the disgruntled IRS agents’ media tour amounted to a gross violation of his due process today; see links for everything here).

Expect a few posts going through them in the next few days.

Start with another embarrassingly false claim Weiss made in response to Hunter Biden’s vindictive prosecution claim that is worse, in some ways, than claiming that Keith Ablow’s picture of sawdust was instead a picture Hunter Biden had taken of cocaine.

It has to do with Roger Stone.

In an effort to claim that Hunter Biden deserves to be criminally prosecuted for tax crimes when Roger Stone was permitted a civil settlement, David Weiss falsely claimed something distinguishes Hunter — that he wrote a memoir about his alleged crime and Stone did not — when in fact, the memoir Stone did reissue during the period he was defrauding the IRS was more closely connected to Stone’s other, more damaging crimes, than Hunter’s memoir was.

If a memoir justifies a tax indictment, then Stone, not Hunter, should be the one facing prison right now.

David Weiss waives response about the import of threats to his family

There are two ways the Los Angeles vindictive prosecution discussion in Weiss’ twin prosecutions of Hunter Biden differs from the one in Delaware, at least so far. Most obviously, it’s a tax case, not a gun case, so Hunter’s attorney Abbe Lowell is making a different argument about how unusual it is for DOJ to charge someone who, like Hunter, late filed his tax returns before he knew of a criminal investigation and then, later, paid those taxes, with penalties.

That’s one difference.

A more subtle one is that Lowell, in his motion to dismiss, made explicit something he had not before: at the time David Weiss reneged on a signed diversion and plea deal, the Special Counsel feared for the safety of his family.

As a result, Mr. Weiss reported he and others in his office faced death threats and feared for the “safety” of his team and family.22

In his response, Weiss didn’t acknowledge, at all, that his own fears for the safety of his family have been made a part of the official record.

Instead, he continued to claim there’s no logical explanation for how the pressure ginned up by Trump and Republicans in Congress led him to renege on a signed plea deal. Weiss continued to claim that any connection is fictional.

[T]o state an obvious fact that the defendant continues to ignore, former President Trump is not the President of the United States. The defendant fails to explain how President Biden or the Attorney General, to whom the Special Counsel reports, or the Special Counsel himself, or his team of prosecutors, are acting at the direction of former President Trump or Congressional Republicans, or how this current Executive Branch approved allegedly discriminatory charges against the President’s son at the direction of former President Trump and Congressional Republicans. The defendant’s fictious narrative cannot overcome these two inescapable facts.

[snip]

Second, to state the obvious, former President Trump is not the President. The defendant’s father is the President. The defendant fails to establish how President Biden or the Attorney General, to whom the Special Counsel reports, or the Special Counsel himself, or his team of prosecutors, are being improperly pressured by former President Trump or Congressional Republicans, such that the Executive Branch approved allegedly selective and vindictive charges to be brought against the President’s son in violation of the law. [my emphasis]

The centrality of Weiss’ claims that President Biden has a role in all this — leftover from the period when the Alexander Smirnov prong of the investigation remained secret — is all the more ridiculous now that it’s public that, after Weiss reneged on the plea deal, he chased Russian disinformation framing Joe Biden.

But is also utterly false that Lowell offered no explanation for how pressure from Trump led Weiss to renege on that plea deal. Once you include Weiss’ own stated fear for his family in the face of threats ginned up by Trump and Congress, what Weiss himself called intimidation, Lowell has established how pressure from Trump and Congress might have led Weiss to capitulate to that pressure. The fear of stochastic terrorism is all you need.

Which brings us to Roger Stone.

Abbe Lowell raises Roger Stone as a tax cheat who got a civil resolution

As noted, the Los Angeles indictment against Hunter is a tax case. And in a selective and vindictive prosecution claim, you need to explain the norm to be able to prove you’re being treated differently. To be sure, this filing is even less focused on selective prosecution, as opposed to vindictive prosecution, than the gun case, meaning such arguments are a small part of the argument. But Weiss has been unduly focused on selective prosecution from even before Hunter first made the claim, presumably because it’s easier to prove that the Hunter Biden case is different than anything DOJ has seen before than to rebut the evidence that Donald Trump and Bill Barr tried to frame Hunter and David Weiss is a witness to that effort.

So the selective prosecution argument, in which defendants have to argue that people just like them have not been charged before, was a minor part of this filing.

But it explains why Roger Stone ended up in a footnote of the filing — as Chris Clark promised they would do over a year ago.

56 The government does not generally bring criminal charges for failing to file or pay taxes, especially if the individual paid the taxes, interest, and penalty afterwards, as Mr. Biden did in October 2021. According to the IRS Data Book for 2021, 2,600,000 taxpayer returns were not timely filed. Many, if not the vast majority, of those cases were resolved with civil resolutions, even in the most high-profile cases. For example, in United States v. Shaughnessy, a DC law partner and his wife failed to file and pay their taxes for 11 years with nearly $7.2 million owed. DOJ ultimately resolved this civilly with tax, penalties and interest only. See Joint Motion for Entry of Consent Judgment, No. 22-cv-02811-CRC (D.D.C. 2023), DE 9. In United States v. Stone, where former Trump adviser Roger Stone and his wife owed nearly $2 million in unpaid taxes for 4 years, DOJ again resolved the matter civilly. No. 21-cv-60825-RAR (S.D. Fla. 2022), DE 64.

Here’s how Weiss, treating this as the guts of Lowell’s selective prosecution claim and therefore distracting from the rest of it, responded to that footnote:

The defendant compares himself to only two individuals: Robert Shaughnessy and Roger Stone, both of whom resolved their tax cases civilly for failing to pay taxes. Shaughnessy failed to file and pay his taxes, but he was not alleged to have committed tax evasion. By contrast, the defendant chose to file false returns years later, failed to pay when those returns were filed, and lied to his accountants repeatedly, claiming personal expenses as business expenses. Stone failed to pay his taxes but did timely file his returns, unlike the defendant. Neither Shaughnessy nor Stone illegally purchased a firearm and lied on background check paperwork. And neither of them wrote a memoir in which they made countless statements proving their crimes and drawing further attention to their criminal conduct. These two individuals are not suitable comparators, and since the defendant fails to identify anyone else, his claim fails. 5

Roger Stone’s tax fraud is different from Hunter Biden’s and that’s why Hunter’s selective and vindictive prosecution claim must fail, David Weiss says.

Weiss distinguishes Donald Trump’s rat-fucker from Joe Biden’s kid in three ways (note, Weiss doesn’t address that DOJ claimed Stone hid his business income, just as Hunter allegedly did):

  • Stone didn’t pay his taxes, but did file timely returns
  • Stone didn’t buy a gun while addicted (as far as we know — though there are pictures of Stone with guns and some of his associates have alleged that Stone had addiction problems in this period)
  • Stone didn’t — Weiss claims — write a memoir “proving [his] crimes and drawing further attention to [his] criminal conduct”

It’s that last bullet that is garbage bullshit, sawdust-as-cocaine levels of stupid.

But let’s take them in order.

David Weiss uses gimmicks to limit extent that addiction can undermine the tax case

Regarding the first bullet, using the failure to file taxes in the LA case to distinguish Hunter from Stone is problematic for several reasons. First, Lowell is arguing that what changed between the plea agreement, which charged only failure to pay, and the tax indictment, which charged a mix of failure to file and failure to pay, was political pressure (and, now, threats that made Weiss worry about his family’s safety).

Notably, Weiss avoids claiming that Stone didn’t evade taxes, probably because the complaint against him alleges that Stone hid his income from the IRS in an alter ego, Drake Ventures, a kind of tax evasion for which Weiss has charged Hunter Biden, but for which Stone was not criminally charged. “By depositing and transferring” over $1 million paid to Stone in 2018 and 2019, “into the Drake Ventures’ accounts instead of their personal accounts, the Stones evaded and frustrated the IRS’s collection efforts,” the complaint alleges (my emphasis). Right there, in the complaint, DOJ claimed that Stone evaded IRS collection efforts, but Stone was not criminally charged.

To get to claiming that Hunter willfully failed to file his taxes charges during the years of his addiction, Weiss relies on a bunch of gimmicks that are at the core of his indictment against Hunter Biden. In Weiss’ responses to Lowell’s technical complaints about the indictment — which I wrote up here — he explained each of those technical complaints away using a gimmick designed to allow him to ratchet up the charges on Hunter while also mitigating the risk that Hunter’s addiction will make it harder to prove the tax case to a jury.

For example, in addition to claiming he could charge Hunter for the 2016 tax year because the President’s son signed tolling agreements with two entities — the Delaware US Attorney’s Office and DOJ Tax Division — that are not involved in this prosecution, Special Counsel Weiss claims that Hunter’s failure to pay his 2016 taxes occurred in 2020, when Hunter was sober, rather than 2016, when he misplaced a finalized tax submission.

Similarly, it’s not so much that Weiss charged Hunter twice for failing to pay his 2017 and 2018 taxes, which Lowell argued made the charges duplicitous, Weiss claims; it’s that Weiss intends to give the jury a choice for which year they want to convict Hunter on those charges — whether he failed to pay when he missed filing deadlines in 2018 and 2019 or he failed to do so when he ultimately filed in 2020, when he was sober.

It doesn’t matter that Hunter didn’t live in California for some of the tax years for which Weiss charged him in California, Weiss says, because Hunter lived in CA when he ultimately did file his taxes in 2020, without paying them. Weiss has used gimmick after gimmick to eliminate problems posed by both Hunter’s addiction and the fact that he filed his taxes before he learned of the criminal investigation into him, on top of the gimmick that he claims Hunter could afford to pay his tax burden in 2020 because Kevin Morris paid for some of his other expenses.

Effectively, to get around the willfulness problem posed by Hunter’s addiction, Weiss has shifted the date of Hunter’s crimes to 2020. But once you’ve done that, Hunter and Stone did the same thing: fail to pay taxes and also hide their income from 2018 (and 2019, in Stone’s case).

The gimmicks are just the kind of normal prosecutorial dickishness we’ve come accustomed to from this Baltimore crowd. But once you understand the effect of the gimmicks — to displace Hunter’s alleged crimes to 2020, when he submitted tax returns for four years at once — then Hunter and Stone are similarly situated, albeit with Stone accused of “evading” taxes in two calendar years, not one.

Weiss says a gun that was never fired is a worse related crime than witness tampering that was

But Weiss has a bigger problem with his effort to dismiss Stone as a comparator. He pulls two things out of his arse to present as distinguishers between Hunter Biden and Stone without (apparently) first doing the least little due diligence to check whether those things he pulled out of his arse have any basis in reality, much less to make sure they don’t actually prove him wrong.

David Weiss says that Hunter Biden is different from Roger Stone because he unlawfully owned a gun for 11 days in 2018. But the gun charge has no tie to the tax charge. Not even Weiss makes that claim!

Indeed, it’s the reverse: investigators decided not to charge gun crimes in 2018, before the tax investigation started. Prosecutors only reconsidered that because of the tax investigation — and (Lowell has alleged with no response from Weiss) because Republican politicians made Weiss afraid for the safety of his family. The only tie between the gun charges and the tax charges would be exculpatory in the tax case — Hunter’s addiction. Weiss’ prosecutors admitted the inverse relationship in Hunter’s initial appearance in Los Angeles. ‘[A]rguably,” Leo Wise said to Judge Mark Scarsi on January 11, “information in that case that is inculpatory in this case, may be arguably, exculpatory in that case.” The things prosecutors will use to prove Hunter was an addict in 2018 undermine prosecutors’ case that Hunter’s failure to file tax returns for 2017 and 2018 was willful.

By contrast, the government did claim that Roger Stone’s tax avoidance tied directly to his other crimes, crimes for which a jury had already found him guilty when DOJ filed the tax complaint in 2021.

The complaint against Stone described how he engaged in fraud to shelter his money because he was indicted.

40. In May 2017, the Stones entered into an installment agreement with the IRS that required them to pay $19,485 each month toward their unpaid taxes. They made these payments each month from a Drake Ventures’ Wells Fargo account.

41. Roger Stone was indicted on January 24, 2019, and the indictment was unsealed on January 25, 2019.

42. After Roger Stone’s indictment, the Stones created the Bertran Trust and used funds that they owned via their alter ego, Drake Ventures, to purchase the Stone Residence in the name of the Bertran Trust.

[snip]

52. 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.

53. The Stones’ purchase of the Stone Residence using funds they held in the Drake Ventures’ Wells Fargo account is marked by numerous badges of fraud. They include:

a. The Stones were in substantial debt to the United States at the time of the transfer, rendering them insolvent at the time of the transfer and unable to pay their debt to the United States;

b. The Stones faced the threat of litigation. Roger Stone had just been indicted;

c. The Stones anticipated that the United States would resort to enforced collection of their unpaid tax liabilities once they defaulted on their monthly installment payments to the IRS; [my emphasis]

It seems DOJ believed that Stone sought to shelter his wealth in a Florida residence that would be beyond the reach of any criminal forfeiture, just like his buddy Paul Manafort did.

And this is why it matters that David Weiss continues to bury his confession to Congress that, when he reneged on the plea deal, he was afraid for the safety of his family.

The crimes for which Stone was indicted — the prosecution which DOJ explicitly tied to Roger Stone’s efforts to defraud the government — involved real threats, not the hypothetical threat of an addict owning a gun.

Roger Stone was convicted for trying to intimidate Randy Credico against testifying to Congress and Robert Mueller. Credico has described that his first contact with the FBI in 2018 was actually a Duty to Warn meeting associated with the plotting of Stone’s militia buddies, not a witness interview.

And Judge Amy Berman Jackson applied a sentencing enhancement for the threat Stone — again, with his militia buddies — made against her personally.

The defendant engaged in threatening and intimidating conduct towards the Court, and later, participants in the National Security and Office of Special Counsel investigations that could and did impede the administration of justice.

Before the Proud Boys launched an attack on the Capitol to prevent the peaceful transfer of power, before Stone allegedly threatened to assassinate one or another Democratic Congressman as well as Leo Wise and Derek Hines’ colleague and Stone prosecutor, Aaron Zelinsky, Enrique Tarrio helped Stone threaten his judge.

That’s the weapon Roger Stone was found guilty of wielding: stochastic terrorism that posed a risk to justice. Just like Donald Trump attacked David Weiss before Weiss got threats that led him to worry about the safety of his family.

And yet, having systematically ignored the threats that Donald Trump and other Republicans ginned up against his family, David Weiss is arguing that Hunter Biden owning a gun unrelated to failing to pay taxes is more incriminating than DOJ’s claims in the tax complaint that Stone’s adjudged witness intimidation tied directly to Stone’s efforts to defraud the IRS.

One is connected to the charged crime. One is not. One led to threats against a key witness and a judge. One did not.

But David Weiss, still refusing to acknowledge his testimony that he feared for the safety of his family, claims the one unconnected to the alleged tax crimes explains his decision to charge the tax crimes. Weiss’ claims about Stone don’t help his case, they show that a criminal case against Stone had more merit than this one.

David Weiss claims Hunter’s memoir is great evidence and then proves it is not

Crazier still, David Weiss is claiming that Hunter Biden wrote a memoir “proving [his] crimes and drawing further attention to [his] criminal conduct” of being an addict (neither the gun for which he is charged nor his failure to pay his taxes appear in the memoir) but Roger Stone did not.

To raise the stakes of this (embarrassingly false) claim, Weiss dedicates three paragraphs laying out how Hunter’s memoir helps to prove the gun case that, prosecutors have admitted, is inversely related to the tax case.

Then, after announcing his awareness of a federal investigation in late 2020, the following year (2021) he chose to author, sell, and promote his memoir, Beautiful Things, and to release an audiobook in a lucrative deal that heightened his prominence and drew further attention to his crimes. 1

1 As outlined in the Indictment, the defendant made statements and admissions in the book relevant to the charges against him.

B. The Defendant Also Chose to Commit Serious Gun Crimes

The defendant’s crimes were not limited to tax violations. In 2018, he chose to purchase a gun, he chose to lie on background check paperwork by stating he was not addicted to drugs, and he certified that his answers on the paperwork were true, when in fact, he had lied about his addiction. See generally United States v. Robert Hunter Biden, Indictment, Dkt. 40 (D. Del). When he later chose to publish his memoir, he included countless admissions about his drug use in 2018 when he possessed the gun.

Again, prosecutors have described that these cases are inversely related. If you prove that Hunter was an addict, as Weiss says the memoir helps him do, you also make it harder to prove that the failure to file for 2017 and 2018 was willful.

Here’s how Weiss treats Hunter’s memoir in the equivalent filing in the gun crimes case.

After the defendant publicly announced his awareness of a federal investigation of him in late 2020, see ECF 63 at 5, the following year (2021) he chose to author, sell and promote his memoir, Beautiful Things, and to release an audiobook in a lucrative book deal. Relevant to the charges in this matter, the defendant made expansive admissions about his extensive and persistent drug use, including throughout the year 2018 when he purchased the gun. For example, the defendant admitted that he was experiencing “full blown addiction” to crack cocaine and by the fall of 2018 he had gotten to the point that:

It was me and a crack pipe in a Super 8, not knowing which the fuck way was up. All my energy revolved around smoking drugs and making arrangements to buy drugs—feeding the beast. To facilitate it, I resurrected the same sleep schedule I’d kept in L.A.: never. There was hardly any mistaking me now for a so-called respectable citizen. Crack is a great leveler.

Hunter Biden, Beautiful Things (2021) at 203, 208

In the Delaware case, Weiss is arguing something different than he is in the LA case, that is about how much evidence (Weiss claims) there is to prove the gun case. As I noted, that’s actually counterproductive in the selective prosecution response, because it proves that the evidence Weiss claims to think is so damning was available in 2021, before he decided to divert the gun crime in 2023, before he came to fear for the safety of his family and then reneged on that diversion agreement.

Oh. And also? Weiss again botches the evidence. The passage cited above about a crack pipe in a Super 8 on page 208 describes the aftermath, in February 2019, of the Ketamine treatment Hunter got from Roger Stone buddy Keith Ablow that — Hunter’s memoir describes — made things worse.

The therapy’s results were disastrous. I was in no way ready to process the feelings it unloosed or prompted by reliving past physical and emotional traumas. So I backslid. I did exactly what I’d come to Massachusetts to stop doing. I’d stay clean for a week, break away from the center to meet a connection I found in Rhode Island, smoke up, then return.

[snip]

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

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

I headed back toward Delaware, in no shape to face anyone or anything. To ensure that I wouldn’t have to do either, I took an exit at New Haven. For the next three or four weeks, I lived in a series of low-budget, low-expectations motels up and down Interstate 95, between New Haven and Bridgeport.

I exchanged L.A.’s $400-a-night bungalows and their endless parade of blingy degenerates for the underbelly of Connecticut’s $59-a-night motel rooms and the dealers, hookers, and hard-core addicts—like me—who favored them. I no longer had one foot in polite society and one foot out. I avoided polite society altogether. I hardly went anywhere now, except to buy. It was me and a crack pipe in a Super 8, not knowing which the fuck way was up. [my emphasis]

This is in no way a description of the state of Hunter’s addiction in “fall of 2018,” when he bought a gun. It’s a description of the state of Hunter’s addiction in February 2019, after treatment from Ablow exacerbated the addiction. To make things worse, Hunter gets the timing of the 2019 follow-up treatment wrong in the book, saying it happened in February when it started in January. This passage is utterly worthless to prove the gun crime, and instead helps to prove that memoirs, especially those written by recovering addicts, are prone to narrative embellishment and error.

To sum up how dumb it is to use the memoir to rebut a selective prosecution claim at all: First, the existence of a 2021 memoir doesn’t help Weiss’ selective prosecution rebuttal in either case, because that evidence was available before Weiss decided to resolve both cases without jail time in June 2023 and so only raises more questions about why he reneged on that deal. The memoir actually isn’t all that helpful to prove the status of Hunter’s addiction in October 2018, because Hunter doesn’t provide as much detail of that as he did of his exploits in Los Angeles, from earlier in the year. Worse still, relying on a passage describing events in February 2019, after Ketamine treatment led Hunter to backslide, and claiming it describes the status of Hunter’s addiction in fall 2018 is only going to prove you never bothered to check your evidence before you indicted on gun crimes. And, finally, Weiss’ prosecutors have admitted there’s an inverse relationship between these two cases! Proving that Hunter was addicted in this period will only make it harder to prove that his non-payment in 2017 and 2018 was willful and may even provide basis to argue that Hunter didn’t willfully lie to his accountant in 2020, but rather couldn’t remember what happened in 2018. The fact that Hunter gets dates wrong in the memoir will actually help that case.

It’s all such a nutty argument, using this memoir as a distinguisher in the tax case.

Roger Stone’s memoir was far more closely connected to his crimes and tax evasion than Hunter’s was

Nuttier still, given the fact — fact! — that Roger Stone did too write a memoir about his crimes!

The claim that Stone didn’t write a memoir about his crimes is as transparently, embarrassingly false as David Weiss’ claim that a photo of a photo of sawdust was instead a picture of Hunter Biden’s cocaine.

Not only did Stone write a memoir about his claimed actions in the 2016 election, he reissued it in paperback, with a lengthy introduction in which he codified the cover story that would prove to be false at trial later that year. As noted in this post, that introduction made a number of claims that were part of Stone’s cover story, including:

  • Describes learning he was under investigation on January 20, 2017
  • Discounts his May 2016 interactions with “Henry Greenberg” — a Russian offering dirt on Hillary Clinton — by claiming Greenberg was acting as an FBI informant
  • Attributes any foreknowledge of WikiLeaks’ release to Randy Credico and not Jerome Corsi or their yet unidentified far more damning source while disclaiming any real foreknowledge
  • Gives Manafort pollster, Tony Fabrizio, credit for the decision to focus on Michigan, Wisconsin, and Pennsylvania in the last days of the election
  • Blames Jeff Sessions for recusing from the Russian investigation
  • Harps on the Steele dossier
  • Dubiously claims that in January 2017, he didn’t know how central Mueller’s focus would be on him
  • Suggests any charges would be illegitimate
  • Complains about his financial plight
  • Falsely claims the many stories about his associates’ testimony comes from Mueller and not he himself
  • Repeats his Randy Credico cover story and discounts his lies to HPSCI by claiming his lawyers only found his texts to Credico after the fact
  • Suggests Hillary had ties to Russia
  • Notes that Trump became a subject of the investigation after he fired Jim Comey [my emphasis]

Those two bolded bits are the core of the case that would be charged in January 2019 and convicted in November 2019. This introduction is part of the same cover-up, one that attempts to profit off his cover-up and protection of Donald Trump.

He reissued it, in part, for financial reasons, including an effort to pay collaborators in the 2016 story that were likely also trial witnesses. That paperback came out in precisely the period in 2019 during which, the tax claim against Stone alleged, he was shifting money to defraud the government because he had been indicted. Stone planned a media blitz that clashed with the gag imposed on him — imposed on him, again, because he and his militia buddies were posting pictures of Judge ABJ with a crosshairs on it.

We know all this because Roger Stone almost went to jail for it. This post describes that conflict.

On February 21, 2019, Amy Berman Jackson gagged Stone in response to the Instagram post targeting her, describing that his incitement might lead “others with extreme views and violent inclinations” to take action.

Let me be clear, at the time of his post he was permitted to criticize the special counsel, the designation of the cases related, and the previous decisions of the judge to whom the case had been assigned. But I am not reassured by the defense suggestion that Mr. Stone is just all talk and no action and this was just a big mistake.

What concerns me is the fact that he chose to use his public platform, and chose to express himself in a manner that can incite others who may feel less constrained. The approach he chose posed a very real risk that others with extreme views and violent inclinations would be inflamed. You don’t have to read the paper beyond today to know that that’s a possibility.

And these were, let there be no mistake, deliberate choices. I do not find any of the evolving and contradictory explanations credible. Mr. Stone could not even keep his story straight on the stand, much less from one day to another. There is some inconsistency in his telling me on the one hand that these public communications are an existential endeavor, essential not only to his income but his very identity, and then, on the other hand, telling us, It wasn’t me.

On March 1, Stone’s attorneys filed a “notice” arguing that the book should not be covered by her gag. On March 4, they submitted a filing saying, oops! it is too late. On March 5, ABJ denied Stone’s request that the book be excluded from the gag and ordered more briefing. On March 11, Stone submitted a bunch of documentation showing (among other things) that at least one of his attorneys was centrally involved in the book publication.

The Bertran Trust was not only an effort to keep money away from the IRS.

It was an attempt to keep the proceeds of a book that violated the gag order imposed to avoid more incitement. It was an attempt to profit off continuing to protect Donald Trump.

And David Weiss, after relying on a Hunter Biden memoir that might help prove the gun case but actually hurts his tax case, claims that memoir doesn’t exist.

And that’s before you consider the book introduction that Stone wrote for Keith Ablow, the guy whose therapy — Hunter’s memoir describes — made his addiction worse, the guy in whose cottage Hunter was staying when his life was packaged up to be sent to David Weiss to use in prosecution.

After looking at Keith Ablow’s sawdust picture and claiming it was Hunter’s cocaine, Weiss has now looked at Ablow buddy Roger Stone and claimed that a memoir that is more closely connected with his tax dodging and dangerous crimes and instead claimed that memoir simply doesn’t exist.

And that is the basis Weiss gives for charging Hunter Biden with tax crimes.

Timeline

October 30, 2018: ABC reports that Stone hired Bruce Rogow in September, a First Amendment specialist who has done extensive work with Trump Organization.

October 31, 2018: Date Corsi stops making any pretense of cooperating with Mueller inquiry.

November 6, 2018: Democrats win the House in mid-term elections.

November 7, 2018: Trump fires Jeff Sessions, appoints Big Dick Toilet Salesman Matt Whitaker Acting Attorney General.

November 8, 2018: Prosecutors first tell Manafort they’ll find he breached plea deal.

November 12, 2018: Date Corsi starts blowing up his “cooperation” publicly.

November 14, 2018: Date of plea deal offered by Mueller to Corsi.

November 15, 2018: Mike Campbell pitches Stone on a paperback — in part to ‘retake the narrative — including a draft of the new introduction.

November 18, 2018: Jerome Corsi writes up his cover story for how he figured out John Podesta’s emails would be released.

November 20, 2018: After much equivocation, Trump finally turns in his written responses to Mueller.

November 21, 2018: Dean Notte reaches out to Grant Smith suggesting a resolution to all the back and forth on their joint venture, settling the past relationship in conjunction with a new paperback.

November 22, 2018: Corsi writes up collapse of his claim to cooperate.

November 23, 2018: Date Mueller offers Corsi a plea deal.

November 26, 2018: Jerome Corsi publicly rejects plea deal from Mueller and leaks the draft statement of offense providing new details on his communications with Stone.

November 26, 2018: Mueller deems Paul Manafort to be in breach of his plea agreement because he lied to the FBI and prosecutors while ostensibly cooperating.

November 27, 2018: Initial reports on contents of Jerome Corsi’s book, including allegations that Stone delayed release of John Podesta emails to blunt the impact of the Access Hollywood video.

November 29, 2018: Michael Cohen pleads guilty in Mueller related cooperation deal.

December 2, 2018: Roger Stone claims in ABC appearance he’d never testify against Trump and that he has not asked for a pardon.

December 3, 2018: Trump hails Stone’s promise not to cooperate against him.

December 9, 2018: Stone replies to Campbell saying that because he never made money on Making of the President, he has no interest.

December 13, 2018: Tony Lyons and Grant Smith negotiate a deal under which Sky Horse would buy Stone out of his hardcover deal with short turnaround, then expect to finalize a paperbook by mid January. This is how Stone gets removed from the joint venture — in an effort to minimize his risk.

December 14, 2018: Mueller formally requests Roger Stone’s transcript from House Intelligence Committee.

December 17, 2018: Smith, saying he and Stone have discussed the deal at length, sends back a proposal for how it could work. This is where he asks for payment the next day, to pay someone off for work on the original book.

For some reason, in the ensuing back-and-forth, Smith presses to delay decision on the title until January.

December 19, 2018: It takes two days to get an agreement signed and Stone’s payment wired.

December 20, 2018: HPSCI votes to release Stone’s transcript to Mueller.

January 1, 2019: Stone includes Keith Ablow on his annual best dressed list.

January 8, 2019: Paul Manafort’s redaction fail alerts co-conspirators that Mueller knows he shared polling data with Konstantin Kilimnik.

January 13, 2019: Stone drafts new introduction, which he notes is “substantially longer and better than the draft sent to me by your folks.” He asks about the title again.

January 14, 2019: Stone sends the draft to Smith and Lyons. It is 3386 words long. Lyons responds, suggesting as title, “The Myth of Collusion; The Inside Story of How I REALLY Helped Trump Win.” Lyons also notes Stone can share the book with Senators.

Stone responds suggesting that he could live with, “The Myth of Collusion; The Inside Story of How Donald Trump really won,” noting, “I really can’t be seen taking credit for HIS victory.”

By end of day, Skyhorse’s Mike Campbell responds with his edits.

January 15, 2019: The next morning, Smith responds with his edits, reminding that Stone has to give final approval. Stone does so before lunch. Skyhorse moves to working on the cover. Late that day Campbell sends book jacket copy emphasizing Mueller’s “witch hunt.”

January 16, 2019: Tony Lyons starts planning for the promotional tour, asking Stone whether he can be in NYC for a March 5 release. They email back and forth about which cover to use.

January 18, 2019: By end of day Friday, Skyhorse is wiring Stone payment for the new introduction.

January 24, 2019: Mike Campbell tells Stone the paperback “is printing soon,” and asks what address he should send Stone’s copies to. WaPo reports that Mueller is investigating whether Jerome Corsi’s “severance payments” from InfoWars were an effort to have him sustain Stone’s story. It also reports that Corsi’s stepson, Andrew Stettner, appeared before the grand jury. That same day, the grand jury indicts Stone, but not Corsi.

January 25, 2019, 6:00 AM: Arrest of Roger Stone.

January 25, 2019, 2:10 PM: Starting the afternoon after Stone got arrested, Tony Lyons starts working with Smith on some limited post-arrest publicity. He says Hannity is interested in having Stone Monday, January 28 “Will he do it?” Smith replies hours later on the same day his client was arrested warning, “I need to talk to them before.”

January 26, 2019: Lyons asks Smith if Stone is willing to do a CNN appearance Monday morning, teasing, “I guess he could put them on the spot about how they really go to this house with the FBI.”

January 27, 2019: Smith responds to the CNN invitation, “Roger is fully booked.” When Lyons asks for a list of those “fully booked” bookings, Smith only refers to the Hannity appearance on the 28th, and notes that Kristin Davis is handling the schedule. Davis notes he’s also doing Laura Ingraham.

January 28, 2019: The Stones pay $19,485 to IRS.

January 28, 2019: The plans for Hannity continue on Monday, with Smith again asking for the Hannity folks to speak to him “to confirm the details.” In that thread, Davis and Lyons talk about how amazing it would be to support “another New York Times Bestseller” for Stone.

February 15, 2019: After two weeks — during which Stone was indicted, made several appearances before judges, and had his attorneys submit their first argument against a gag — Stone responded to Campbell’s January 24 email providing his address, and then asking “what is the plan for launch?” (a topic which had already been broached with Lyons on January 16). Campbell describes the 300-400 media outlets who got a review copy, then describes the 8 journalists who expressed an interest in it. Stone warns Campbell, “recognize that the judge may issue a gag order any day now” and admits “I also have to be wary of media outlets I want to interview me but don’t really want to talk about the book.”

February 18, 2019: Release of ebook version of Stone’s reissued book.

February 21, 2019: After Stone released an Instagram post implicitly threatening her, Amy Berman Jackson imposes a gag on Stone based on public safety considerations.

February 25, 2019: The Stones transfer $70,000 from Drake to Attorney account.

February 28, 2019: The Stones transfer $70,000 from Drake to Attorney account. The Stones pay $19,485 to IRS.

March 1, 2019: Ostensible official release date of paperback of Stone’s book. Stone submits “clarification” claiming that the book publication does not violate the gag.

March 4, 2019: Stone submits filing saying it is too late to hold the book.

March 5, 2019: The Stones establish Bertran Trust.

March 5, 2019: ABJ denies Stone’s request to exclude the book from the gag and orders further briefing.

March 11, 2019: Stone response to ABJ order, including exhibits showing that at least one of his attorneys knew of the imminent book release at the gag hearing.

March 22, 2019: The Stones purchase condo using $140,000 transfered from Drake Ventures account.

March 27, 2019: The Certificate of Trust recorded in Broward.

March 28, 2019: The Stones fail to make IRS payment, leading to default.

May 24, 2019: The Stones open three bank accounts in name of Bertran Trust.

June 2, 2020: Roger Stone writes forward to Keith Ablow book celebrating Trump.

David Weiss Was Planning on Using Alexander Smirnov’s Claims against the Bidens Until He Wasn’t Anymore

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On November 16, CNN reported on David Weiss’ ongoing use of a California grand jury. It reported that by that point, the FBI had concluded its renewed look at money laundering and FARA violations and was not going to file charges.

Prosecutors working under Weiss told a judge earlier this year that in addition to tax charges, they could also bring charges related to possible violations of the Foreign Agent Registration Act. Internal Revenue Service investigators who were part of the Hunter Biden investigation have alleged that the prosecutors slow-walked and blocked efforts to look into possible money laundering and foreign lobbying allegations.

The FBI, which oversaw the money laundering and FARA portions of the investigation, concluded its findings and didn’t anticipate charges to emerge from those allegations, people briefed on the matter told CNN.

That was over a month after the September 27 interview at which Smirnov renewed and expanded his lies. No charges were going to be filed on November 16, CNN reported.

But on November 15, Abbe Lowell asked for discovery on the Scott Brady side channel and subpoenas to serve on people like Trump and Bill Barr.

  1. All documents and records reflecting communications from January 20, 2017 to the present (the “Relevant Time Period”) to, from, between, or among Donald J. Trump, William P. Barr, Geoffrey Berman, Scott W. Brady, Richard Donoghue, or Jeffrey A. Rosen relating to or discussing any formal or informal investigation or prosecution of Hunter Biden, or a request thereof.
  2. All documents and records reflecting communications from the Relevant Time Period to, from, between, or among Donald J. Trump, William P. Barr, Geoffrey Berman, Scott W. Brady, Richard Donoghue, or Jeffrey A. Rosen and any Executive Branch official, political appointee, Department of Justice official, government agency, government official or staff person, cabinet member, or attorney for President Trump (personal or other) discussing or concerning Hunter Biden.

Lowell raised the Brady side channel in his selective prosecution filing, too. David Weiss’ responses to such requests always misrepresented the ask, pretending it pertained to no more than directions from Jeffrey Rosen’s office to avoid overt pre-election investigative steps.

And all the while, according to the Alexander Smirnov detention memo, he kept getting on planes to meet Russian spooks.

In October 2023, SMIRNOV had in-person conversations with RUSSIAN OFFICIAL 1 overseas. During these conversations, RUSSIAN OFFICIAL 1 discussed his knowledge and seeming control of two groups of Russian operatives who were previously tasked with the assassination of a high-ranking official of COUNTRY C. RUSSIAN OFFICIAL 1 offered to stop the assassination efforts in exchange for certain things, including an agreement by COUNTRY C to stop targeting civilian-family members of certain Russian officials living in Moscow

[snip]

SMIRNOV attended a meeting in COUNTRY A [probably UAE] in December 2023 that was attended by RUSSIAN OFFICIAL 2, a high-ranking member of a Russian Foreign Intelligence Service. The primary purpose of the meeting was to discuss a potential resolution to the Russia-Ukraine war.

Against that background, there’s a detail in the Smirnov indictment that hasn’t attracted the attention it deserves.

David Weiss bases his authority for charging Smirnov — in California, not Delaware — on his Special Counsel authority.

41. 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.

42. On August 11, 2023, the Attorney General appointed David C. Weiss, the United States Attorney for the District of Delaware, as Special Counsel. The Special Counsel was authorized to conduct the investigation and prosecution of Businessperson 1, as well as “any matters that arose from that investigation, may arise from the Special Counsel’s investigation, or that are within the scope of 28 C.F.R. § 600.4(a).”

The only way Smirnov could be covered under that Special Counsel grant of authority is if, when investigators interviewed Smirnov on September 27, they were investigating Hunter Biden. David Weiss was made Special Counsel to investigate Hunter Biden, not those who framed him and his father.

There’s a lot that Weiss left out of the indictment, like Scott Brady’s claim to have vetted Smirnov’s travel records and Bill Barr’s claim that Weiss was ordered in 2020 to further investigate the claim and Richard Donoghue’s order to Weiss, just days after Trump yelled at Bill Barr for not doing enough to investigate Hunter Biden, to accept a briefing on Smirnov’s claims.

But that detail makes it clear that the point of the interview was to investigate Hunter Biden, not — not at first, anyway — to investigate Smirnov. This is why, if Abbe Lowell gets discovery on this issue, I think this footnote will be vindicated (an argument I made back in November).

4 The discussion about the scope of the immunity agreement appears shaped by the prosecution’s investigation of the Smirnov allegations, which it began looking into just days before the July 26, 2023 hearing. (Smirnov Indict. ¶ 41 (noting the prosecution team began investigating Smirnov’s claims in July 2023).) While a host of possible crimes had been investigated, the defense understood that the FARA/bribery investigation had been closed and that the only pending issues concerned gun and tax charges. The Diversion Agreement resolved the gun and tax charges, which is why defense counsel believed the immunity agreement covered everything and would conclude the investigation. The push back from the prosecution and its discussion of an “ongoing” investigation—apparently tied to the Smirnov allegations—came as a surprise to defense counsel. (7/26/23 Tr. at 50, 54.) Having taken Mr. Smirnov’s bait of grand, sensational charges, the Diversion Agreement that had just been entered into and Plea Agreement that was on the verge of being finalized suddenly became inconvenient for the prosecution, and it reversed course and repudiated those Agreements.

The reason why David Weiss reneged on a plea deal was to chase this bribery claim. The reason why David Weiss charged Hunter Biden with a bunch of felonies rather than resolving this in a diversion and misdemeanors was because he wanted to chase the false claims floated by someone dallying with Russian spies.

And I’d be willing to bet that if Lowell hadn’t asked for discovery that may expose that fact, David Weiss would never have indicted Alexander Smirnov.

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.