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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.

Where Derek Hines Claims to Have Gotten the Hunter Biden Dick Pics He Sniffed

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Even if Judge Maryellen Noreika threw out the gun charges against Hunter Biden today, I’d be grateful for the recent squabble over Hunter Biden’s motion to compel, and not just for the endless amusement of seeing an experienced drug prosecutor like Derek Hines claim sawdust on a table saw is cocaine.

That’s because by providing what he thinks is solid proof that Hunter was an addict in 2018, Hines has revealed a bit about where such evidence exists among the digital evidence he has in hand and where it doesn’t.

Most significantly, for this case, it appears Derek Hines relied exclusively on the laptop to get the texts surrounding the period immediately after Hunter Biden bought a gun. Particularly given the turmoil in Hunter’s access to his devices in those precise days, without validation of the texts in an Apple database, that would make the texts far harder to use at trial.

As a reminder, the Apple data at issue comes from three places:

In December, Hines got a warrant to search the existing data for gun crime evidence, but did not go back to obtain a warrant to access any backed up devices — if they exist — that would be more appropriate to the gun charges.

Hines claimed, in his response to Hunter’s selective prosecution bid that, “the results of the search” of the laptop “were largely duplicative of information investigators had already obtained from Apple.” In his response to Hunter’s motion to compel, he claimed that, “Many of the same messages, photographs, and information that were obtained from the iCloud warrants were also located on the defendant’s laptop,” but made no representations about the reverse — whether all the messages present on the laptop were in the iCloud production.

It appears they were not.

This table shows my rough transcription the 28 items included in Hines’ exhibit of gun-related evidence. Let me know of errors, particularly with my time conversations between UTC and “Hunter time,” which I’ve assumed was PT for the earlier texts and ET for the later ones. I’ve bolded those instances where “Hunter time” is the day before UTC time. My transcription of the hex identifiers, where Hines included them, are especially likely to have errors (and only include the first identified hex for each item).

These items include:

Items 1, 26-28: Four pictures, all of which he has presented without hex identifiers or EXIF metadata. Two come from iPhone backups obtained from Hunter’s iCloud (one being the iPad on which items 28-25 were found); two (including the sawdust picture) come from what is described as an iPhone 11 backed up to iTunes, apparently found on the laptop; I’m aware of no public record of Hunter owning an iPhone 11. Note: for the reason zscoreUSA notes below, Hines’ label of the sawdust picture as an iPhone 11 must be an error, as those were first released on September 20, 2019, too late to be on the laptop, and only possible to be included in the iCloud returns if Hunter got one the day they were released and backed up everything to an iPhone 11. So it may be a typo for iCloud backup 11, which would be an iPhone XR. 

Items 2-10: Nine texts, dated between May and July 2018, obtained from iCloud Backup 1, which the warrant return describes as an iPhone X. Six of those, items 5 through 10, appear to record a drug transaction arranged over the course of a half hour overnight on July 25-26. While this backup is associated with an iPhone X of uncertain vintage (Hunter went through at least three iPhone Xes in 2018), seven items were obtained from a device called XRNASHUA, an iPhone XR; Apple did not introduce the iPhone XR until October 2018 and Hunter is not known to have obtained his first one until spring 2019, in New Haven, not Nashua. The only two communications obtained from an iPhone X, Items 3 and 4, used an unknown phone number. Item 2 is a WhatsApp text.

Items 11-17: These texts, showing exchanges between Hunter and Hallie Biden on October 13, 14, and 23, derive from what Hines describes as an iTunes Backup. Hines doesn’t identify of which phone — not even the device type — nor does the metadata included identify which phone Hunter used. Just one of the texts Hunter sent, item 13, is described as “delivered” after it was “sent.” I’ll return to these below.

Items 18-25: These texts came from an iPad Pro called “Robert’s iPad” which, based on the serial number included in Gus Dimitrelos’ report, was purchased in November 2015.

iPad Pro 12.9-inch (1st generation) Wi-Fi
Purchase Date: November 2015

Serial Number: DLXQL4EUGMLD

Emails released on BidenLaptopEmails dot com show someone logging into Hunter’s iCloud, Facetime, and iMessage with an iPad Pro on November 11, 2015, the same day Gus Dimitrelos shows it — named as Roberts, no apostrophe, iPad — logging into Hunter’s iCloud account. The next day, a pricy iPad pencil was ordered from Apple, though it was on backorder until January 2016. On May 20, 2016, Find my iPad was used to play a sound on an iPad called “iPad 206” twice. The process of signing into iCloud, then Facetime and iMessage with an iPad Pro, was repeated on September 11, 2016, what Dimitrelos describes as the first access by iPad 206, the one already associated with Hunter’s account earlier that year. On October 26, 2016, Find my iPad was disabled on iPad Pro 206 and on November 13, 2016 the cards were removed and the device was deleted — presumably, given that Find my iPad had been disabled, in person. Those same publicly released emails show no other iPad Pros logging for the first time into Hunter’s account, though in August 2018, an iPad (not identified as a Pro) was deleted, with that process completing in September 2018. But Dimitrelos shows four other iPads named either “Robert’s” or “Roberts” iPad logging into Hunter’s account (February 19, 2013, August 24, 2017, October 21, 2017, January 21, 2018). Of the texts included in Hines’ exhibit, which were sent between November 8 and December 27, 2018, just one, item 20, was marked as delivered and read, and it wasn’t one of the ones sent to probable family members.

I’ll leave the technical discussion there, in case anyone understands how Apple tracks iMessage texts or the difference between texts saved in ChatStorage and SMS.

But several general conclusions stick out. First, it’s likely that two of the devices for which Hines got a new warrant for drug crimes in December 2018, iCloud Backup 2, a 6S, and iCloud Backup 3, seemingly a different XR, had no communications pertinent to the year in question, 2018 [update: unless the explanation for Hines’ error in labeling photos as iPhone 11 is a typo for iCloud backup 11]. That will be of interest if Abbe Lowell ever gets to file a suppression motion, since there could be no probable cause to obtain content from an unrelated period. Second, it’s not clear that any of these devices were the devices on which the communications in question were sent. Hines’ best evidence of a drug purchase — those texts from July 25-26, 2018 — would probably have been sent in an iPhone X and then synched onto an iPhone XR purchased quite a bit later. As with all the other digital evidence Hines seems not to have thought through, given how often Hunter lost devices with access to his iCloud account and how rarely he reset it, it’s not enough to show that texts saved through Hunter’s iCloud showed evidence of a drug purchase. You would have to show that the phone on which those texts were originally sent was in Hunter’s hand at the time the texts were sent.

And this problem is especially fraught for those October 13-14 texts sent between Hallie and Hunter in October 2018, by far the most important evidence for his case. Here’s how they fit in with the timeline I laid out here, showing how Hunter responded after realizing he had misplaced both his main phones on October 11. The two main texts (in bold below) appear to have been sent before Hunter first logged into his new replacement iPhone and before he changed his password, even while people were clearly trying to break into some of his accounts. So prosecutors would have to prove that those texts weren’t sent by whoever inherited the phones Hunter had just lost.

Timeline

October 12, 12:56PM: As you requested, your temporary [AT&T] password is: ****** Use your user ID and temporary password to sign in to your account.

October 12, 12:56PM: Looks like you recently updated the AT&T password.

October 12, 12:57PM: Critical security alert for your linked Google Account, Sign-in attempt was blocked for your linked [RosemontSeneca] Google Account [device not specified]

October 12, 3:25PM: Thanks for using your AT&T Device Protection Plan! Your claim [ending in 431] has been started

October 12, 3:32PM: Thanks for using your AT&T Device Protection Plan! Your claim [ending in 431] has been started

October 12, 3:38PM: Thanks for using your AT&T Device Protection Plan! Your claim [ending in 579] has been started

October 12, 3:40PM: Your [AT&T] insurance claim [phone ending in 96]

October 12, 3:44PM: Your [AT&T] insurance claim [phone ending in 13]

October 12, 3:49PM: Thanks for using your AT&T Device Protection Plan! Your claim [ending in 701] has been started

October 12, 3:55PM: Please complete and return your claim documents Wireless Number: **94

October 12, 3:57PM: Thanks for using your AT&T Device Protection Plan! Your claim [ending in 799] has been started

October 12, 4:03PM: Please complete and return your claim documents Wireless Number: **29

October 12, 5:35PM: Hello. Review your AT&T order

October 12, 6:22PM: Good news. Your replacement device [grey Apple iPhoneX] has shipped. [phone ending in 13]

October 12, 6:24PM: Phone [email from Joey]

Hey, You left your phone and other things. Tried to reach you at 202 and 302 all day but no luck. Let me know where to overnight.

October 12, 7:20PM: Good news. Your replacement device [iPhone 8] has shipped. [phone ending in 96]

October 12, 8:00PM: Verify your Samsung account [accessing Hunter’s iCloud]

October 12, 11:31PM: Someone Just Checked Your Background Report

October 13, 7:10AM: (Email) You left your phone. How do I get it to you?

joey

October 13, 7:26AM: (Email) You left your phone. How do I get it to you?

joey

October 13, 11:13AM: Let’s setup your AT&T replacement device [phone ending in 13]

October 13, 12:35AM: Someone Just Checked Your Background Report

October 13, 2:00PM: Hello, Review your AT&T order [changes to wireless]

October 13, 9:17PM: Your [RosemontSeneca] Google Account was just signed in to from a new Samsung Galaxy Note 9 device

October 13 10:30PM: I’m now off MD Ave behind blue rocks

October 13, 11:36PM: Wells Fargo Has Registered Your Mobile Device

October 14, 5:37AM: I was sleeping in a car

October 14, 2:24PM: Your Apple ID password has been reset

October 14, 2:24PM: Your Apple ID was used to sign in to iCloud on an iPhone X

October 14, 3:28PM: Wells Fargo card added to Apple Pay

October 14, 3:36PM: Verify your Samsung account [on iCloud]

October 14, 7:48PM: (Email from Joey) “Overcoming myself”

When you have a minute, read ….

Open my shared note:

Exp[o]rt Reports: When David Weiss Claimed Keith Ablow’s Sawdust Was Hunter Biden’s Cocaine

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As Garrett Ziegler was confessing, again, to have accessed a password-protected phone backup (for which Hunter Biden is suing him), he described that this is a photo of a photo in the office of then-still licensed psychiatrist Keith Ablow, which Ablow sent Hunter Biden, explaining that the photo came from an expert carpenter who was trying to kick a coke habit.

Ziegler was even kind enough to include the June 2, 2022 extract date of the iPhone XS iTunes backup where he found the picture, even while bitching of the dishonor and incompetence of David Weiss and his team.

David Weiss says the picture isn’t one of sawdust passed on by Keith Ablow. He says it’s a picture that Hunter Biden took himself of “apparent cocaine” sometime in late 2018.

During November and December 2018, the defendant took multiple photographs of videos apparent cocaine, crack cocaine, and drug paraphernalia.

Weiss doesn’t provide a date for the photo. But he says it came from an iPhone 11 backup stored to iTunes, though he’s not telling whether he found it in an iTunes backup in Hunter’s iCloud account obtained in September 2019, or an iTunes backup found on a laptop attributed to Hunter Biden obtained in December 2019.

iTunes Backup (iPhone 11) – Production 1

Now, perhaps it’s a good thing that David Weiss didn’t know he was (at least per Ziegler, who — bizarrely — has more credibility than the people who have a stack of warrants and lots more metadata) falsely claiming that this picture depicted cocaine. Perhaps that means he didn’t breach Hunter’s privileged communications with Ablow and read what the then still-licensed psychiatrist had to say to his client.

But he has just made the competence of his team’s forensic analysis an issue, and done so in a filing in which Derek Hines appears to be claiming they don’t need any expert forensic reports.

In the motion to compel to which Hines was responding, Abbe Lowell had claimed that Weiss had not turned over any expert reports.

Mr. Biden requested the ongoing production of all materials subject to disclosure under FRCP 16(a)(1)(A), (B), and (D). (See DE 65.) Mr. Biden notes that his October 2023 Rule 16 requests also cover any expert reports that the prosecution intends to rely upon at trial; to date, however, no expert reports or materials have been identified or produced to defense counsel.

The prosecution produced a Delaware state police case file, which includes a summary of an interview Mr. Biden gave police in October 2018 and other information about the purchase, discard, and recovery of the firearm, as well as evidence photos from its case file. The prosecution also produced an ATF case file that has additional information about the firearm and statements about its purchase. Mr. Biden asks the Court to order the prosecution to either (1) confirm no further responsive documents or communications exists in its possession (which includes material in the possession of all relevant government agencies and officials), or (2) produce the requested documents (including any expert reports) and, if the prosecution believes any responsive documents are protected from disclosure, identify those documents and the reasons why the prosecution believes they need not be disclosed.

Not true!, responded Hines in the filing where he appears to have claimed a photo of sawdust taken by a Keith Ablow client was instead a photo of cocaine taken by Hunter Biden.

Hines described that the prosecution has provided two expert reports: that of the FBI chemist who — five years after the gun was seized — found cocaine residue in the pouch in which the gun was found, but didn’t look for fingerprints or try to date the cocaine.

The defendant does not allege any Rule 16 materials are missing from the productions other than one assertion that, “to date, however, no expert reports or materials have been identified or produced to defense counsel.” ECF 83 at p 6. He is incorrect. On November 7, 2023, the government produced to the defendant an expert report prepared by an FBI chemist who analyzed the cocaine discovered on the defendant’s brown leather pouch that had contained his gun.1 In this same production, the government also produced an expert report prepared by an agent related to the interstate nexus of the gun charged in the indictment.2 In addition to these reports, the government produced other materials for these two experts, including CVs, as well as a CV for an additional expert.3 By contrast, the defendant has failed to provide any discovery, including any expert discovery.

In addition, prosecutors provided the CV for the witness who’ll attest the gun had a nexus to interstate commerce and the CV for … Hines isn’t describing what kind of witness that is.

But there are at least four reports I expected to see that are missing:

  • The FBI agent John Paul Mac Isaac calls “Matt” who (at least per JPMI, who like Ziegler might be as reliable as Weiss at this point) described trying to boot up the laptop on December 9, 2019, four days before the known warrant to access the laptop
  • The FBI Computer Analysis and Response Team analyst named Mike Waski, from whom Josh Wilson claims to have obtained the laptop after he had already obtained the laptop four days earlier from JPMI
  • The FBI CART analyst, Eric Overly, who actually imaged the hard drive, which Gary Shapley notes happened after December 13; there may be a different CART analyst who imaged the laptop itself who would be on the hook for another expert report
  • A March 31, 2020 email about the completeness of the disk image that JPMI had done, which prosecutors were withholding from any agents who might testify at trial but which Shapley has kindly informed us exists
  • Any analysis “computer guy” did after October 22, 2020, which is when the FBI realized they had never bothered to check when files had been added to the laptop they had been using for ten months

Those kinds of expert reports are precisely what might have spared poor Senior Assistant Special Counsel Derek Hines from apparently claiming that a photo of a photo of sawdust taken by Keith Ablow is instead a photo of cocaine taken by Hunter Biden.

For example, here’s how Gus Dimitrelos used EXIF data — EXIF data he says he found on most or all of the photos Hunter took — to validate photos to Hunter on the laptop attributed to him.

In this case, Dimitrelos matched the photo to a known iPhone Hunter used and a known location he was at on a particular date and time.

To use photographs to attribute to Hunter Biden cocaine use, those photos are not only going to need to depict cocaine rather than sawdust, but they’re going to need to be accompanied by the kind of forensic data that could prove that a particular phone taking a picture was in Hunter’s hand at the time a picture was taken.

That’s particularly true in this case. Ziegler shows that Ablow texted this photo to Hunter on November 20, 2018.

That happens to be the day when someone first accessed Hunter’s droidhunter account — the one via which his digital life would be packaged up two months later — from a Mac device for the first time after the laptop ultimately shared with the FBI was first logged into Hunter Biden’s iCloud account.

But based on what is available on the public emails, after someone logged into Hunter’s iCloud account with a new laptop on October 21, 2018, it was weeks before a new Mac device logged into his Gmail accounts, starting with a November 16 attempt to log into Rosemont Seneca that was rejected by Google, followed by a reset of the droidhunter account and a login into that on November 20, followed by a login into Rosemont Seneca on November 24. Not only did those attempts come in the midst of a bunch of attempts to get into Hunter Biden’s Twitter account from a Mac. But on November 27, someone appears to have gotten into his iCloud account from Troutdale, OR.

That is, because this text was sent during a period when some crucially important anomalies were happening on Hunter Biden’s digital accounts, you’d need to ensure that whatever device with which Hunter seemingly engaged in this exchange with Ablow was actually in his hand in Newburyport, MA, and not in someone else’s hand in Troutdale, OR. That’s especially important with any conversation with Ablow, because in at least two known conversations — one in which he created the illusion for Hunter that he was speaking to some orthopedic surgeons, and another in which he entirely rewrote a Hunter comment subsequently published in Vanity Fair — Ablow presented as Hunter.

And by claiming a photo of sawdust taken by an Ablow client is instead a photo of cocaine taken by Hunter Biden, Derek Hines may have spoiled his effort to sand-bag Abbe Lowell and avoid a suppression challenge to all this digital evidence. Sure, Hines is claiming that Lowell missed his window to file a motion to suppress by December 11, 2023. But he apparently just claimed that he hasn’t validated the data he’s submitting, as an officer of the court, in filings before Judge Maryellen Noreika. And with this apparent flub, Hines has definitely made the importance of expert forensic reports an issue.

It appears increasingly likely that before Jim Jordan demanded a prosecution of Hunter Biden and before David Weiss started to worry about threats to his family, Weiss or someone who knew better realized that any prosecution that would rely on this digital evidence would be rife with these kinds of embarrassments. But then Weiss decided he’d go forward anyway, he’d bring in experts in prosecutorial dickishness to try to sandbag their way through the difficulties posed by the laptop.

Don’t get me wrong: Hines and Leo Wise have well earned their reputation for prosecutorial dickishness. This effort to avoid any suppression challenge relating to the laptop might yet succeed!

But without the least little understanding of digital forensics, that may not be enough to sustain this case.

Update: According to someone familiar with Ablow’s office in this period, the photo does appear to match one that was in the office. That’s important because the FBI and DEA would have photos of Ablow’s office from the 2020 raid.

Update: We’ve literally come full circle. Fox News is in a tizzy because of these photos, though they appear more careful than DOJ to claim the sawdust is Hunter’s.

 

David Weiss Claims to Have Plain Viewed Hunter Biden’s Dick Pics for Years

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In response to Hunter Biden’s notice of the schedule in California submitted in his Delaware case, Judge Maryellen Noreika asked what was up with Biden’s motion to compel submitted more recently.

ORAL ORDER re 84 Status Report – Having reviewed Defendant’s status report, which states that his motions to dismiss are fully briefed but is silent as to his most recently filed motion to compel discovery (D.I. 83), IT IS HEREBY ORDERED that, on or before February 14, 2024, the parties shall notify the Court whether the parties have reached an agreed-upon briefing schedule for the recent motion to compel or whether briefing will proceed pursuant to the Court’s Standing Order Regarding Responses to Defense Motions in Criminal Cases. ORDERED by Judge Maryellen Noreika on 2/13/2024.

David Weiss responded by explaining his legal basis for accessing Hunter Biden’s dick pics and claiming that Abbe Lowell has forfeited any ability to challenge evidence thus seized. It reveals how Weiss plans to introduce evidence from stolen data that was originally accessed without a warrant in a case against the son of the President of the United States.

It is breathtaking in sheer ethical shoddiness.

And, it may work.

Derek Hines describes that he provided Abbe Lowell the tax warrants to access the iCloud, the laptop, and backups in October, and that because those warrants permitted the search for the what the warrant claims was the email account owner’s state of mind, then searching for evidence of addiction was fair game.

Relevant to this case, investigators were authorized by these warrants to seize “evidence indicating the email account owner’s state of mind as it relates to the crimes under investigation.” Evidence that showed the defendant’s addiction to and use of narcotics indicates “the email account owner’s state of mind as it relates” to the tax crimes enumerated in the warrant. In addition, investigators were also permitted to seize evidence relevant to this case under the plain view doctrine, which they did. This evidence, from the defendant’s backups of his devices to his iCloud account, was produced with the warrants in Production 1 in an easily searchable format. The primary source of electronic evidence in this case is from the defendant’s iCloud account, which investigators were authorized to seize because it showed “the email account owner’s state of mind as it relates to the crimes under investigation” as well as under the plain view doctrine.

Production 1 also included the contract the defendant signed when he dropped off his laptop and hard drive at the computer repair store in which he agreed that, “[e]quipment left with the Mac Shop after 90 days of notification of completed service will be treated as abandoned.” Investigators also obtained a search warrant authorizing them to search the laptop and hard drive that was obtained from the computer repair store. See District of Delaware Case No. 19-309M, issued on December 13, 2019. The warrant authorized investigators to search for the same violations referenced in the previous paragraph, that is, violations of 26 U.S.C. § 7201, Tax Evasion, 26 U.S.C. § 7203, Willful Failure to File Tax Returns or Pay Taxes, and 26 U.S.C. § 7206(1), False Tax Returns. Relevant to this case, this warrant also authorized investigators to seize “evidence indicating the state of mind of the owner and user of the TARGET MACBOOKPRO and TARGET EXTERNAL HARD DRIVE as it relates to the crimes under investigation.” Again, evidence that showed the defendant’s addiction to controlled substances indicates “the state of mind of the owner and user of the TARGET MACBOOK PRO and TARGET EXTERNAL HARD DRIVE as it relates” to the to the tax crimes enumerated in the warrant. In addition, investigators were also permitted to seize evidence relevant to this case under the plain view doctrine. Evidence seized pursuant to this warrant was produced to the defendant in the specific format that he requested. Many of the same messages, photographs, and information that were obtained from the iCloud warrants were also located on the defendant’s laptop. [my emphasis]

In other words, for months, they were claiming that they had found evidence of addiction in the name of searching for tax crimes and if not that, then plain view and that’s all they were relying on while searching Hunter Biden’s dick pics for five years.

Plain view is the concept that if you see evidence of a crime while looking for other crimes, you can use that evidence at trial (usually, after getting another warrant).

Derek Hines described (there are ways to prove this is false, if Lowell gets his shot to do that, but Hines claims he has forfeited that chance) sniffing Hunter Biden’d dick pics for years, all in the name of tax crimes.

Then, Hines described, he got the December 4 warrant for the very same information, and Abbe Lowell acknowledged seeing it on December 5, which gave them another legal authority to sniff Hunter Biden’s dick pics.

On December 4, 2023, investigators obtained an additional search warrant for the defendant’s iCloud account, the backup data associated with his iCloud account, his MacBook Pro laptop, and the hard drive. See District of Delaware Case No. 23-507M, issued on December 4, 2023. This warrant authorized investigators to search for violations of 18 U.S.C. § 924(a)(6) and 924(a)(2) related to making a false statement during a background check to deceive a firearms dealer, violations of 18 U.S.C. § 924(a)(1)(A) related to making a false statement during a background check on records that the firearms dealer was required to maintain, and violations of 18 U.S.C. 922(g)(3). Among other items, the warrant authorized investigators to seize “all evidence relating to addiction, substance use, and controlled substances, to include conversations, message communications, photographs, documents, and videos.” The December 4, 2023, warrant provided yet another legal basis for investigators to seize information relevant to this case from the defendant’s iCloud account, his iCloud backup files, his laptop, and his external hard drive. The warrant was produced to the defendant that same day, December 4, 2023. The following day, December 5, 2023, defense counsel sent the government a letter that acknowledged it had reviewed this search warrant. Because the actual evidence relevant to this case that was previously seized from the laptop, hard drive, and iCloud backup files had already been produced to the defendant on October 12, 2023, there was no additional evidence produced in response to this warrant.

Effectively, Weiss is saying that because Lowell did not immediately move to suppress the laptop and its progeny with just six day’s notice, that claim has been mooted.

The defendant’s pretrial motions were due on December 11, 2023. ECF 57. The defendant did not file any motions seeking to suppress evidence related to the search warrants and evidence produced to him on October 12, 2023, in Production 1. The December 4, 2023, warrant does not entitle him to file any now. In fact, the December 4, 2023 warrant moots any issues that could have been raised by the defendant had he filed a motion to suppress those warrants, and, in any event, he did not elect to file motions to suppress the evidence from the August 29, 2019, December 13, 2019, or July 10, 2020 warrants that were produced to him on October 12, 2023.

As I will show, the places where they obtained communications are themselves problematic, but if this claim that the December 4 warrant moots any suppression claim works, then Lowell will have no opportunity to challenge the fact that David Weiss wants to use stolen data to prosecute the son of the President except by challenging individual communications at trial.

I’ve literally never seen something this ethically brazen. Ever. (Though admittedly, I only cover federal trials; this kind of stuff goes on in state cases all the time.)

And they’re doing it to get away with investigating Joe Biden’s son for years using stolen data.

Judge Mark Scarsi Refuses Accommodations That Trump’s Judges Have Granted

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While the judges in former President Trump’s federal prosecutions have been issuing reasonable (in Tanya Chutkan’s case) and unreasonable (in Aileen Cannon’s case) extensions in pretrial deadlines, the judge in Hunter Biden’s Los Angeles case seems intent on keeping a politically damaging trial scheduled for the middle of campaign season, June 20.

Last week, Abbe Lowell requested two accommodations in the pretrial schedule in Los Angeles: first, that he be permitted to hold off filing the four (actually, three) filings fully briefed before Judge Maryellen Noreika that he will also file in Los Angeles: a motion to dismiss based on immunity under the diversion agreement, a selective and vindictive prosecution claim, and a claim that David Weiss was improperly appointed. Lowell also mentioned the constitutional challenge to the gun charge, but that won’t be filed in Los Angeles. At the initial appearance, Lowell said instead there would be one based on “the actions of the IRS agents that were involved.”

Here’s an updated version of my Howard Johnsons-colored table showing how all these cases interrelate, including the filings we should expect in both federal cases; I’ve put an updated version of the eight cases Lowell is juggling below (and have started tracking them here).

Lowell did not mention the as-yet unfiled motion to suppress the laptop he said he’d file in Delaware on January 30. I’ll come back to that.

In addition, Lowell requested a 3-week extension on the initial filing deadline, from February 20 to March 12, for the motions that will be unique to Los Angeles; he did not mention a filing about the IRS agents, but did mention motions on the Statute of Limitations (presumably affecting just the 2016 tax year), venue (possibly affecting both the 2016 and 2017 year), and multiplicity. To justify that, he cited a death in the family of one of the lawyers working on these filings, as well as several other deadlines pending:

  • Responses to motions to dismiss in the Garrett Ziegler and Rudy Giuliani lawsuits at the end of the month
  • A February 22 hearing in the John Paul Mac Isaac suit and Hunter’s countersuit
  • Hunter’s February 28 impeachment deposition in the House

Judge Scarsi denied the motion with no comment.

To be sure, I’m not remotely surprised Scarsi denied Lowell’s motion to hold off on the identical motions already filed in Delaware.

At the initial appearance on January 11, Scarsi raised those filings himself.

[T]he Court has gone through and actually read what’s been filed so far in Delaware. So the Court wanted to come up to speed on the issues [at] play here. And so, we’ve got — at least we’re up to speed in what’s been filed so far.

The parties have spent, it looks like, a lot of time, or will spend time briefing issues in Delaware. And I think that should help us expedite matters here, because it wouldn’t surprise me if some of the same issues raised in Delaware are raised in this Court. In fact, the Court anticipates that happening.

Scarsi even ordered the parties to cut the 70-page filings submitted before Judge Noreika down to something like 20, double his normal limit of 10 pages (the parties have yet to file a stipulation showing that’s what they’ve agreed on).

[T]he parties know from reading the Court’s standing order, the Court’s standing order in criminal contemplates that the page limitations on motions is 10 pages. Motions and oppositions, and replies not necessary.

Now the Court is willing to grant the parties a little leeway here, to exceed the page limits, you know, contemplating doubling them, at most.

Scarsi even recognized that the diversion filing might trigger an interlocutory appeal, because he warned Lowell that the precedent (which he named) governing interlocutory appeals in the Ninth Circuit is fairly limited and directed him to address that issue in his initial filing.

At the time, Lowell knew the briefing deadline before Judge Noreika, and so could have requested to hold those three identical motions at that point.

Plus, it’s not the case that the motions will be identical. The diversion filing in Los Angeles will and always would have been mostly a place-holder; if Noreika rules against Hunter regarding the diversion agreement, then there would be no basis to make the same claim in Los Angeles absent an interlocutory appeal in Delaware. It’s only if she rules for Hunter that Lowell’s claim that the immunity in the gun diversion extends to the tax case would come into play.

The selective and vindictive prosecution filing in Los Angeles will have to swap the comparators showing how no non-violent person in recovery from addiction has been charged with the same gun charges in Delaware with comparators showing that no one who has paid their taxes, much less someone who — Abbe Lowell claims but has not yet shown proof — overstated their income has been criminally charged, with a mention of Roger Stone’s more lenient treatment as well. Lowell mentioned the two tax laws criminally prohibiting the kind of pressure that Trump exercised in Hunter’s case only in passing; they would seem to be far more central here. And given the fact that the US Attorney for Los Angeles, Martin Estrada, was among those threatened as a result of the political pressure on this case, it would seem useful for Lowell to raise the threats elicited by those demanding this prosecution.

Even the Special Counsel challenge could be tweaked given Weiss’ admission to Congress that he has never been subject to the kind of oversight from political appointees that Morrison v. Olson requires. Weiss was already functioning as a Special Counsel before demanding appointment as such, presumably to get the opportunity to write another political hit piece targeting a Biden man (or men).

I’m not even that surprised that Scarsi refused to budge on the schedule. At the initial appearance he not only warned that he likes to move quickly,

Again, if we’re going to move this case either forward or expeditiously, and efficiently — and that’s what this Court likes to do. We like to move things along, because I think it’s better for all the parties and we don’t have things linger.

But Scarsi also suggested that because he set a schedule first, Judge Noreika should now have to accommodate his schedule.

So what I’m going to do is, I’ll go ahead and issue an order with those dates. That will hopefully prevent conflict with Delaware, because this order will be in place and the Court in Delaware will likely be aware of it.

So Lowell was on notice of all of that.

There’s one thing Lowell wasn’t on notice of on January 11, and his request for a delay may be about something other than the motions to dismiss.

Delaware Superior Court Judge Robert Robinson only set the February 22 hearing in the John Paul Mac Isaac lawsuit and Hunter’s counterclaim on February 1 at 8:52 AM. Per Lowell’s declaration and email record, 38 minutes after Robinson set that hearing, Lowell first reached out to prosecutors about this delay (in their dickish fashion, they blew him off for six days).

If Robinson were to rule in Hunter’s favor — if he were to rule that, under Delaware law, JPMI didn’t own Hunter’s laptop when he first offered it up to the FBI on either October 9 (JPMI’s version) or October 16, 2019 (FBI’s), less than a year after someone who may or may not be Hunter Biden dropped it off, if he were to rule that JPMI violated his own promise to protect Hunter Biden’s data, not least by snooping through Hunter’s data well before even he, JPMI, claimed his intake form gave him ownership of the laptop — then it might have fairly dramatic impact on any motion to suppress the laptop.

That’s true, not least, because (if you can believe JPMI and it’s not clear you can), after JPMI sent a hard drive with the data across state lines to his father, the FBI told his father that, “You may be in possession of something that you don’t own.” After which JPMI and his father sent that same data across even more state lines, including to Congress and Rudy Giuliani. And yet rather than opening a criminal investigation into JPMI for interstate trafficking of the potentially stolen data of the former Vice President’s son, David Weiss instead decided to build an entire case around that data.

Worse still, JPMI’s public claims about what he saw in the data are obviously false: of particular note, there are no known emails substantiating his claims that the laptop showed, “information about Ihor Kolomoyskyi and Mykola Zlochevsky, and their involvement in using Hunter and Devon to protect the billions they embezzled from the IMF.” The crime of which JPMI told the FBI they’d find evidence on the laptop was entirely made up — and made up to create a video that might serve Trump’s impeachment defense.

Lowell’s motion to compel — submitted in Delaware two days before that hearing was set — describes receiving “The Mac Shop files.” It doesn’t describe receiving the initial FBI legal review that concluded JPMI and his father likely didn’t own that laptop or data. It doesn’t describe receiving the 302s documenting the FBI’s interactions with JPMI (302s that were also not shown to case agents who might have to testify at trial). If warnings that JPMI didn’t own this data really exist, and if prosecutors are withholding it to cover up real problems with their reliance on the laptop, it would be fairly important evidence.

A favorable Delaware ruling would likely have more impact on the Los Angeles case than anything but a ruling in favor of Hunter’s diversion argument in Delaware, because it would show that David Weiss chose to use poison fruit to investigate Hunter Biden rather than pursue a case of interstate data theft. The SDNY case against those who stole Ashley Biden’s diary and a thumb drive with tax records and photographs on it and trafficked them across state lines shows that such things can be prosecuted.

At the initial hearing, Scarsi told Lowell that the, “February 20th date is for motions that you know now that you intend to bring.” When Lowell said he’d file a motion to suppress the laptop and everything else in Delaware, he pointed to several other things — such as reliance on witness testimony from a Los Angeles grand jury post-indictment and the filing for the warrant itself post-indictment — to get as a basis to suppress. Lowell still hasn’t mentioned a motion to suppress the laptop to Scarsi. He’s likely now trying to determine whether he can and should wait on a ruling from Robinson before he files such a suppression motion to Scarsi, who has promised to rule expeditiously.

It’s not surprising that Scarsi denied Lowell’s request (though it is a telling contrast to the treatment Trump is getting).

But it is also the case that these moving parts really may affect the case before him.

Update: Abbe Lowell has filed a status report in the Delaware case in case Judge Noreika decides she doesn’t want Scarsi to preempt her.

1) Delaware Gun Case (Maryellen Noreika)

[RECAP docket]

September 14: Indictment

October 3: Arraignment

October 12: First Discovery Production (350 pages focused on gun case), including iCloud data and “a copy of data from the defendant’s laptop”

October 13: Motion to Continue

October 19: Order resetting deadlines

November 1: Second Discovery Production (700,000 pages on tax charges — no mention of FARA investigations)

November 15: Hunter subpoena request

December 4: Weiss subpoena response

December 11: Motions due

December 12: Hunter subpoena reply

January 9: Third Discovery Production (500,000 pages focused on tax case)

January 16: Responses due

January 30: Replies due

January 30: Motion to compel

2) Los Angeles Tax Case (Mark Scarsi)

[RECAP docket]

Hunter was indicted on December 7 and made a combined arraignment/first appearance on January 11. At that hearing, Judge Mark Scarsi set an aggressive (and, from the sounds of things, strict) schedule as follows:

February 20, 2024: Motions due

March 11: Response due

March 18: Replies due

March 27 at 1:00 p.m.: Pretrial motion hearing

April 17: Orders resolving pretrial motions.

June 3 at 1:00 p.m.: Status conference

June 20: Trial

3) House Dick Pic Sniffing (James Comer and Jim Jordan)

November 8: James Comer sends a pre-impeachment vote subpoena

November 28: Lowell accepts Comer’s offer for Hunter to testify publicly

December 6: Comer and Jordan threaten contempt

December 13: Pre-impeachment deposition scheduled; Hunter gives a press conference and states his data has been “stolen” from him

December 13: Impeachment vote authorizing subpoena

January 10: Oversight and Judiciary refer Hunter for contempt

January 12: Lowell invites Comer and Jordan to send another subpoena, now that they have the authority to enforce it

January 14: Jordan and Comer take Lowell up on his invitation

February 28: Deposition

4) IRS Lawsuit (Tim Kelly)

[RECAP docket]

September 18: Privacy Act lawsuit

November 13: DOJ asks for extension to January 16

January 16: DOJ files motion for partial dismissal

January 23: Joint motion to continue

January 30: Original deadline for Hunter response

February 5: Amended complaint

February 9: DOJ asks for delay for response from February 20 to February 27

5) John Paul Mac Isaac’s Suit and Hunter’s Countersuit (Robert Robinson)

Last summer, John Paul Mac Isaac and Hunter both sat for depositions, on May 31 and June 29, respectively.

Last fall, Hunter Biden subpoenaed people like Rudy Giuliani, Robert Costello, Steve Bannon, Yaacov Apelbaum (who made a copy of the contents of the laptop), Tore Maras (who has described adding things to the laptop). In November, Hunter also served a subpoena on Apple.

On January 4, the parties to John Paul Mac Isaac’s suit and countersuit filed to have their pending motions decided by a judge. The media defendants — CNN and Politico — are filing to dismiss. Hunter and JPMI filed competing motions for summary judgment.

And Hunter is filing to quash a bunch of subpoenas, initially 14, to Hunter’s parents, uncle, ex-wife, former business partners, and several people with his father, like Ron Klain and Mike Morell. Though after that, JPMI attempted to subpoena Hunter’s daughters.

Since then, Judge Robinson stayed John Paul Mac Isaac’s subpoenas and scheduled hearings in the Motions to Dismiss (from CNN and Politico) and Motions for Summary Judgement (from Hunter and JPMI) for February 22.

6 AND 7) Hacking lawsuits against Garrett Ziegler and Rudy Giuliani (Hernan Vera)

[RECAP Ziegler docket; RECAP Rudy docket]

September 13: Complaint against Ziegler

September 26: Complaint against Rudy and Costello; noticing Ziegler suit as related case

November 15: Ziegler gets 30 day extension

December 1: Costello gets 30 day extension

December 7: After swapping attorneys, Ziegler gets extension to December 21

December 21: Ziegler motion to dismiss and request for judicial notice (heavily reliant on JPMI suit)

January 17: Costello motion to dismiss with Rudy declaration that makes no notice of his fruit and nuts payments relating to Hunter Biden

January 22: Lowell successfully requests to harmonize MTD hearing for both hacking lawsuits

February 8: Rescheduled date for hearing on motion to dismiss

February 22: Rescheduled date for hearing on motion to dismiss

End of February: Response to motions to dismiss due

March 21: Joined date for hearing on motion to dismiss

8) Defamation against Patrick Byrne (Stephen Wilson)

November 8: Complaint

January 16: After swapping attorneys, Byrne asks for 30 day extension

February 6: Rescheduled response date

Abbe Lowell Already Accused David Weiss of a Brady Violation

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There was something subtle but potentially important in Abbe Lowell’s motion to compel discovery in Hunter Biden’s gun case.

First, after discussing the discovery requests he sent in October and November, he described reminding prosecutors (this is actually in the October letter) that Leo Wise had assured Judge Maryellen Noreika on July 26 that prosecutors had provided all Brady materials.

Mr. Biden reminded the prosecution that this Court ordered the production of Brady materials on July 26 and October 3 and asked the prosecution to confirm whether further productions were forthcoming, or Mr. Biden would need to move to compel. Id. As the Court may recall, the prosecution told the Court at the July 26 hearing that it had already produced all Brady material. (7/26/23 Tr. at 7 (“THE COURT: Has all Brady material been produced? MR. WISE: Yes, Your Honor”.).) Yet, the prosecution did not send the first production for almost three months, until October 12, 2023, with a cover letter noting its production was “in response” to Mr. Biden’s October 8 letter requesting discovery. [emphasis original]

Then, later in the motion, Lowell described that the Delaware case file prosecutors didn’t provide until October 12 — in response to the October 8 letter — included a declination decision.

Despite assuring the Court all Brady material had been produced on July 26, 2023, since then, the prosecution has produced an October 2018 state police case file of the firearm incident that includes interview memoranda and deliberations among Delaware state prosecutors regarding whether to file charges—per the file, on October 30, 2018, after reviewing the facts, New Castle County prosecutors decided not to prosecute and closed the case. [emphasis original]

A decision not to charge for state crimes would be helpful but not definitive at a trial on federal charges. But it pretty clearly is helpful to Hunter Biden’s defense.

And yet, prosecutors hadn’t provided it to Chris Clark before, on July 26, Leo Wise assured Judge Noreika that prosecutors had provided all Brady.

I suspect the motion to compel is designed as much as a challenge — “is this your final answer?” — before Lowell makes further allegations that prosecutors withheld material helpful to Hunter’s defense. That is, I suspect Lowell knows of certain things, perhaps the memos that Joseph Ziegler’s original supervisor, Matthew Kutz, included in the case file documenting improper political influence, that also clearly count as Brady that he hasn’t received yet.

That said, I suspect there was a pretty good reason prosecutors didn’t bother to give Clark that Delaware case file before the hearing on July 26: because there was never any consideration of actually charging Hunter on the gun crimes. That is, whatever Brady they provided was likely focused on the tax case, not the gun one, because the gun charge was never going to be charged.

Until Leo Wise, who assured Judge Noreika that prosecutors had complied with Brady, decided that he was going to charge those gun crimes.

Particularly given DOJ’s increased focus on such things in recent years after some really big Brady violations, a serious Brady violation is one of the few things that would actually give Merrick Garland cause to shut down David Weiss as Special Counsel.

The declination decision, turned over a month after the indictment, isn’t that, yet. For Leo Wise, who assured the judge in this case that all Brady had been turned over, however, it’s a detail that might be more convenient if treated as proof they weren’t going to charge gun crimes before they did.

The Hunter Biden Laptop: Two CARTs before the Horse

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According to the property receipt that has been posted publicly (but not, as far as I know, been made available as separate PDF), FBI Special Agent Josh Wilson signed the receipt for a hard drive and laptop obtained from John Paul Mac Isaac. The date is obscure, but consistent with receipt on December 9, 2019.

The admittedly inconsistently dark case file on that form, as right wing frothers never tire of pointing out, is a money laundering case file, 272D-BA-3065729.

According to the warrant return I liberated this week, on December 13, 2019, Josh Wilson received the hard drive and laptop again. He received the laptop not from an evidence locker, where it might normally go while an agent gets Office of Enforcement Operations approval and then gets a warrant from a magistrate judge, but from a Computer Analysis Response Team (CART) Computer Analyst named Mike Waski.

The warrant I liberated is not for money laundering. The only crimes listed on Attachment B are tax crimes: 26 USC 7201, 26 USC 7203, and 26 USC 7206(1).

According to the notes Gary Shapley took after it became clear that, after sharing the laptop with the FBI, John Paul Mac Isaac shared a copy with Rudy Giuliani, after Josh Wilson took possession of the hard drive and laptop (a second time), the hard drive, at least, went back to CART — this time, a CART Agent named Eric Overly.

In spite of the fact that Shapley made these notes in order to explain precisely what happened with the laptop, Shapley doesn’t mention where the laptop was between December 9, 2019, when Josh Wilson took possession from JPMI and December 13, 2019, when Josh Wilson took possession again.

Joseph Ziegler returned the warrant on January 30, 2020. But it wasn’t until March before the FBI got an image of the laptop (though this may have been after a filter team review). Josh Wilson got that personally, too.

Putting two carts before the horse is not normal, here. When the FBI accepts a laptop, even if it is being used in multiple investigations, they image it once and then — as ultimately happened here, probably multiple times — they obtain new warrants for the same device, first for the tax investigation, then for a FARA investigation, and finally, 81 days after indicting the President’s son for gun crimes, for a gun investigation.

But this laptop, Hunter Biden’s laptop, went from the blind computer repairman to Josh Wilson to CART to Josh Wilson and then back to CART.

I currently have theories why that happened. But no answers.

I’ve asked David Weiss’ spox for clarification about zscoreUSA’s observation: why the caption for the warrant obtained last month lists a different device serial number for the laptop:

Then the laptop for the actual laptop obtained from JPMI, which is what appears in the Attachments that were only released pursuant to Judge Maryellen Noreika’s orders after I made some follow-up calls.

The serial numbers are just off by two characters:

  • FVFVC2MMHV2G
  • FVFXC2MMHV29

David Weiss’ spox hasn’t acknowledged that inquiry. This could be a typo or, as was suggested, FBI Agent Boyd Pritchard may have used the serial number for a laptop into which (as Shapley described) FBI dropped the removable hard drive from the laptop obtained from JPMI. In that case, it would normally note that the laptop contained the hard drive liberated from a prior laptop.

Perhaps all this will get sorted if and when Abbe Lowell makes good on his promised suppression motion. But until then, I only have theories, not answers.

Smoking Gun! FBI Didn’t Have “Sufficient Evidence” to Prosecute Firearms Crimes against Hunter Biden

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Let’s go back to the Devlin Barrett story that kicked off the manufactured scandal about DOJ slow-walking the Hunter Biden investigation.

That story wasn’t just about tax charges, though those have gotten the bulk of attention. That story claimed that Federal agents had enough evidence to charge Hunter Biden with a false statement tied to purchasing a gun in 2018.

Federal agents investigating President Biden’s son Hunter have gathered what they believe is sufficient evidence to charge him with tax crimes and a false statement related to a gun purchase, according to people familiar with the case.

[snip]

The gun paperwork part of the investigation stems from 2018, a time period in which Hunter Biden, by his own account, was smoking crack cocaine.

In October of that year, Biden purchased a handgun, filling out a federal form in which he allegedly answered “no” to the question whether he was “an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?”

According to a book Hunter Biden later wrote about his struggles with substance abuse, he was using drugs heavily that year.

While it is definitely true that prosecutors ham sandwiched their way through a grand jury on September 14, 2023, charging the President’s son with three felonies (potentially even by relying on the plea colloquy prosecutors obtained before reneging on the deal they made to get it), revelations from that last week have made it clear that while they had enough evidence to charge Hunter Biden, they didn’t have enough evidence to prosecute him.

At the time they indicted, David Weiss had the case file from local authorities showing state prosecutors declining to charge the case days after discovering the gun. Importantly, that case file included evidence photos of the gun itself.

[A]n October 2018 state police case file of the firearm incident that includes interview memoranda and deliberations among Delaware state prosecutors regarding whether to file charges—per the file, on October 30, 2018, after reviewing the facts, New Castle County prosecutors decided not to prosecute and closed the case.

[snip]

The prosecution produced a Delaware state police case file, which includes a summary of an interview Mr. Biden gave police in October 2018 and other information about the purchase, discard, and recovery of the firearm, as well as evidence photos from its case file. [my emphasis]

They also had the ATF case file, describing more about the gun purchase.

The prosecution also produced an ATF case file that has additional information about the firearm and statements about its purchase.

They had excerpts from Hunter Biden’s book. There’s no indication whether those excerpts include the multiple passages that explain why any digital evidence from 2018 would pose some evidentiary challenges. Indeed, when I asked about one of those challenges in December, Weiss’ spox had no explanation for it.

But there are three things David Weiss only sought after indicting the case — and so over a year after Devlin’s sources got him to publish that there was sufficient evidence to charge Hunter Biden.

Sometime in October, the month after the indictment, they sent the firearm for the first time to an FBI lab to test the residue on the pouch in which the gun was found; the residue tested positive for cocaine. The photos in the local case file are important, because the purported reason an FBI agent accessed the gun in October 2023, the month after the indictment, was to take photos of it.

In 2023, FBI investigators pulled sealed evidence from the state police vault to take photographs of the defendant’s firearm. After opening the evidence, FBI investigators observed a white powdery substance on the defendant’s brown leather pouch that had held the defendant’s firearm in October 2018. Based on their training and experience, investigators believed that this substance was likely cocaine and that this evidence would corroborate the messages that investigators had obtained which showed the defendant buying and using drugs in October 2018. An FBI chemist subsequently analyzed the residue and determined that it was cocaine. [my emphasis]

But the effort to obtain forensic evidence after the indictment was half-hearted; investigators did not test to see how long the residue had been in the pouch, nor did they test for other fingerprints.

(a) a brown pouch (obtained by a scavenger from a public trash can) with cocaine residue was in law enforcement’s possession for over five years, but was not tested until after the charges were brought; (b) even then no test was done for fingerprints or to date how long the residue had been there;

Then, sometime after convening a grand jury for tax crimes in November 2023, the second month after the indictment, Weiss obtained,

testimony (in support of finding probable cause) about the firearm obtained from a witness in a grand jury empaneled in the Central District of California in November 2023 after this indictment had already been brought.

Finally, in December 2023, days after Abbe Lowell asked prosecutors for their evidence of Hunter Biden’s mindset in October 2018, David Weiss obtained — Weiss claims, for the very first time — a warrant to search Hunter’s digital records for such evidence. (Side note: Lowell explains that prosecutors sent him that warrant the day they obtained it, December 4, something Derek Hines didn’t think was important to tell Judge Maryellen Noreika.)

According to the warrant return, Special Agent Boyd Pritchard was still searching for that evidence when Judge Noreika granted my request to unseal it.

That makes David Weiss’ failure, thus far, to actually provide Bates stamps of or describe where they found the messages that prosecutors intend to rely on at trial all the more notable. Even assuming Abbe Lowell’s promised motion to suppress that late warrant fails — and that’s likely — there are aspects of the forensics involved that may make it hard to introduce the messages themselves at trial. Plus, it raises questions about whether they actually found these texts or simply think they know they exist because they read them in some public news report? And if they saw it in a public news report, were those agents tainted by one of the many hard drive sets that have been tampered with?

You can definitely argue, and I’m sure prosecutors will, that some of this late obtained evidence was opportunistic. For example, they may argue that they really did need new photos of Hunter’s gun — photos they did not need to present their case to the grand jury — in advance of trial. They may argue that whatever witness whose November testimony they included in the December warrant was a key tax witness, and they simply locked the person into gun testimony while they had them under oath. That kind of stuff flies under precedents of prosecutorial dickishness all the time.

But, assuming David Weiss’ claim to have only obtained a warrant to search Hunter’s digital evidence for gun crimes on December 4, 2023, you cannot say they had the evidence to prosecute the crime.

They hadn’t looked — not in the over three years they had been combing through Hunter’s digital life. Or, if they had looked, they had done so unlawfully.

That’s not evidence, as Gary Shapley claims, of slow-walking the investigation. That’s evidence that in October 2022, when someone kicked off a scandal that has led to an impeachment inquiry by telling Devlin Barrett what to write down as if it were true, no one planned to take this to trial.

Republicans have spent the 15 months since Devlin’s October Surprise screaming about the investigation, based in significant part on the claims made in Devlin’s story.

But one key claim in Devlin’s story — about how much evidence they had to support the gun charges — has been debunked by David Weiss’ three months of scrambling to get more.

This makes Devlin’s gun claims the second scandal manufactured by the WaPo that has been at least partially debunked in recent weeks.

And Devlin, with his reporting partner Perry Stein, chased Derek Hines’ coke-in-gun stunt; that’s precisely the kind of stunt WaPo Dick Pic Sniffers will jump on every time. But they have not reported that that lab report and the warrant to search Hunter’s digital evidence for gun evidence came after the indictment.

In other words, this is, like Matt Viser’s story about the George Bergès testimony, yet another example of WaPo failing to admit that the scandals they manufactured years ago haven’t held up to the evidence found since.

Chessboard(s): Hunter Biden’s Replies

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I’m going to write two posts on Hunter Biden’s reply motions in his gun case. Here are all the relevant filings:

Motions to dismiss

Information collection motions

This post will address the point I made here: Abbe Lowell is managing eight different legal challenges for Hunter Biden that, with the exception of the Patrick Byrne defamation suit, all interrelate. He seems to be managing them to optimize timing and information collection.

This totally ugly illustration captures how I’ve begun to think of these (anyone remember Howard Johnson motels?).

The most immediate threat against Hunter Biden is the stuff in the middle: the threat of imprisonment in the (so far) twin prosecutions of him; I’ve included a column to allow for the possibility that David Weiss is still considering more. But that threat exists within — indeed, Lowell argues in his selective prosecution motion, was demanded — as part of the larger GOP impeachment and election effort. Lowell has responded to those threats with lawsuits — a countersuit against John Paul Mac Isaac, hacking lawsuits against Garrett Ziegler and Rudy Giuliani (all three are marked in blue), and a gross negligence lawsuit against the IRS (in green) — that will or may provide a second way of collecting information, outside the prosecutions.

For example, countersuing JPMI provided a way to get the data the blind computer repairman had shared with the FBI and the rest of the world, as well as to subpoena Apple (data obtained in discovery may parallel that subpoena). The judge in that case has stayed some nuisance subpoenas from JPMI targeting Hunter’s family, and dueling motions for summary judgement are all briefed for a hearing. If Lowell succeeds with his argument that JPMI violated Delaware law by snooping through a laptop the computer repairman claims was dropped off by Hunter Biden before sharing it with the FBI and the GOP, it would destabilize Weiss’ prosecutions (both of which, given the December warrant, build off it) and impeachment (in which the GOP has been relying on a hard drive they were withholding from Democrats). Not only did that countersuit make lawsuits against Rudy Giuliani and Garrett Ziegler possible, but if Lowell prevails, then those lawsuits will become a lot more precarious for the men who destroyed Hunter’s life if those suits survive a joint motion to dismiss hearing — largely based on venue and the applicability of Lowell’s hacking theory — in March.

That’s important background to the new motion to compel filed yesterday, which follows on two other efforts to gather information — a motion to subpoena Trump and others, and a motion for discovery. Among other things, that motion asks David Weiss to describe specifically where in the Apple data his team obtained the texts cited in his response to Hunter’s selective prosecution claim. As I alluded to yesterday, not only do the July 2020 warrants almost certainly build off the laptop in a way that Weiss seems to be trying to obscure, but the way in which and timing that devices were embedded within the laptop may pose some interesting legal problems for the government, particularly given that the warrants aspire to obtain attribution information that (thus far at least) Weiss’ team seems blissfully unconcerned with. While that same motion suggests it is seeking expert reports about the gun, if Weiss plans to rely on evidence obtained directly or indirectly from the laptop, he’s going to have to call the guy who, JPMI claims, was trying to boot it up before obtaining a warrant on December 9, 2019, as well as the “computer guy” who didn’t bother to check when files were added to the laptop for 10 months after receiving it, precisely the kind of attribution information that would be critical to actually admitting any of it as evidence.

Relatedly, Lowell has also promised a motion to suppress the laptop evidence.

The search warrant on December 4, 2023, which post-dates the firearm indictment by almost three months, is the first time in the course of this five-year investigation that DOJ obtained a warrant to search the alleged laptop (and iCloud account and backup data) for evidence of federal firearms violations. The prosecution then used that warrant to purportedly review and seize, for the first time, text messages, photos, and other evidence in support of its felony charges, several of which the prosecution cited in its pleadings on January 16, 2024. (See DE 68 at 8–9.) Moreover, that warrant contained testimony (in support of finding probable cause) about the firearm obtained from a witness in a grand jury empaneled in the Central District of California in November 2023 after this indictment had already been brought. Accordingly, the issue raised—as a result of the prosecution’s recent filings—is one to explore at the evidentiary hearing Mr. Biden requested (DE 64) and a motion to suppress which will be filed promptly.

Partly, this motion to suppress will be a complaint about Weiss’ post-indictment use of a California grand jury in this case (a complaint that, by itself, likely wouldn’t work). But there are other parts of even what I can see in the warrant that make it ripe for challenge. At the very least, defending a motion to suppress will force the government to commit to certain technical claims that, thus far at least, they appear to be dodging.

The motion to compel also asks Judge Noreika to get a commitment from Special Counsel that they have provided all Brady evidence. As it is, Weiss’ team is adhering to a far stingier discovery standard than Jack Smith is and Robert Mueller and the post-Mueller Mike Flynn challenge did. But there are things out there — the most notable of which is the Perfect Phone call between Donald Trump and Volodymyr Zelenskyy, the most important of which are the threats that David Weiss and his team received before he reneged on a plea deal — that Lowell likely can argue are solidly Brady which, from the sounds of things, Weiss has not provided. Lowell has, thus far, not called out Derek Hines for claiming it would take a Hollywood plot to explain how the political pressure ginned up by a guy who has elicited dangerous threats against every prosecutor and judge deemed to be adversarial to him might have led David Weiss to renege on a deal. Hines’ silence about those threats basically amounts to license, given by an AUSA, for stochastic terrorists to target all his AUSA colleagues. I’ve been puzzled that Lowell has never mentioned these threats — except in passing in the selective prosecution reply — but wonder whether Lowell is simply leaving it there for Weiss to fail to mention with the repercussions that will have on the case.

Litigating a motion to suppress and a motion to compel will also delay any trial in this case, assuming none of these motions to dismiss work. Those are not Lowell’s only bid for delay. In the reply challenging that the gun charges against him are unconstitutional, Lowell responded to Weiss’ optimism that SCOTUS will review other gun cases by bidding to stay the entire gun trial: “this Court should await that guidance from the Supreme Court before allowing this case to proceed to trial.” That’s probably not going to work, but Lowell’s Bruen-related challenge will ensure that Weiss can’t close up shop until the constitutional question is decided. More interestingly, given the tight schedule Judge Mark Scarsi has set in the Los Angeles case, with a trial scheduled for June, delays in Delaware (assuming the case is not dismissed) could have the effect of putting the tax case before the gun case.

As I’ll show in a post on the selective prosecution claim, such a claim may work better in the tax case than the gun one.

Potential delay may be one point of Lowell’s challenge to both the manner of David Weiss’ appointment as Special Counsel and his funding for it. In his reply, Lowell claims that Weiss has responded to the challenge by arguing that Weiss would have been able to prosecute Hunter as US Attorney for Delaware, so there’s no legal problem with doing so as Special Counsel.

In response to both the lack of authorization and lack of appropriation issues, the Special Counsel claims the Court should let him go ahead and prosecute this case in the wrong way because he believes he could find a right way to prosecute the case if he wanted to. Opp. at 20. With respect to his lack of authorization to bring the case as Special Counsel, Mr. Weiss claims that he could have brought the case in his capacity as U.S. Attorney even though he did not. Opp. at 22– 23 (conceding that he signed the indictment as “Special Counsel,” rather than bringing it in his capacity as U.S. Attorney). Perhaps Mr. Weiss could resign as U.S. Attorney and seek to be reappointed as Special Counsel, consistent with DOJ regulations, and then seek to indict Mr. Biden again. Perhaps he could find a way to prosecute this case with the costs and expenses of gathering new evidence that was not obtained in violation of the Appropriations Clause as well (see supra at 15). But such issues are premature as he has done none of those things. It is telling that Mr. Weiss’s last argument is that, if all else fails, he can put back on his U.S. Attorney hat, change the nameplate on his door, and start again

But that’s the point of the appropriations clause aspect of the challenge; Lowell argues that Weiss would have to go back and collect new evidence (testing the pouch the gun was found in for cocaine residue, getting new grand jury testimony, and getting a warrant to use laptop content for the gun crimes) without violating the appropriations clause. I don’t like this motion nor do I think it will work. But by making an appropriations clause challenge, Lowell may be able to enjoin certain things — like issuing a final report, replete as John Durham’s was with fabrications — until any appeals are exhausted.

Which brings me to the claim that the diversion agreement must be honored and the related discovery motion. Those are the arguments I’ve always thought stood the best chance (though the briefing on it has devolved into a squabble about language). In the body of the latter argument, Lowell notes that Weiss’ claims he was always considering charging Hunter doesn’t defeat Hunter’s claims, because he ultimately decided not to, before he changed his mind for no apparent reason.

The prosecution’s response to Mr. Biden’s motion to dismiss for selective and vindictive prosecution further confirms the need for discovery should the Court not dismiss the indictment outright. The prosecution claims that its reasons for charging this case were based on “overwhelming evidence” (DE 68 at 2, 24) it obtained in 2019 and 2021, and on the unexplained “deterrent effect” (DE 68 at 33, 40–41) that it claims this prosecution of Mr. Biden serves. And the prosecution suggests “it had been considering” charging Mr. Biden “long before plea negotiations began.” (DE 68 at 17, 40, 48.) But this explanation is entirely pretextual because— even with all these factors in play—the prosecution still determined that the appropriate resolution was a diversion on the gun charge and a probationary sentence on two tax misdemeanors. The prosecution even signed a Diversion Agreement and Plea Agreement to that effect, and openly advocated for the Court to adopt the Plea Agreement at the July 26, 2023 hearing. What the prosecution has not explained is why it deemed this agreed upon resolution of its issues with Mr. Biden appropriate on July 26, 2023, but chose to abandon that approach and charge Mr. Biden with multiple gun and tax felonies afterward. It is undisputed that extremist Republicans criticized the prosecution’s deal heavily, and since then, House Republicans have declared that pressure is what caused the prosecution to reverse course. The fact that the prosecution’s explanation for its charging decision does not explain why it chose to change its proposed resolution of the dispute does nothing to show those House Republicans are wrong to claim causing the prosecution to reverse course.

Then a completely predictable footnote notes that the efforts to collect new evidence after indicting raise more questions about Weiss’ claims than they answer.

1 The prosecution’s opposition briefs reveal some new evidentiary issues (e.g., seizing electronic evidence for the gun charges for the first time pursuant to a December 4, 2023 warrant; using a grand jury in California in connection with the tax case to elicit evidence for already-indicted gun charges in Delaware; seeking a search warrant in December 2023 to search for evidence in support of its charges three months after having charged; testing a leather pouch for cocaine residue in October 2023 that it had in its possession for five years; denying there was Probation’s approval for the diversion agreement) in addition to those raised in Mr. Biden’s motions to dismiss themselves (e.g., how a Delaware agreement for a diverted gun charge and two tax misdemeanors turned into multiple felonies in two jurisdictions following massive political pressure to do just that). Based on the prosecution’s admissions made only recently in its filings, Mr. Biden will expeditiously file a motion to suppress improperly gathered evidence.

This is what I pointed out: Admitting that you never sent the gun to the lab until weeks after indicting the case is a confession that you were never really going to prosecute it until Jim Jordan demanded you do so.

And the excuse offered in the filing — that an FBI agent first saw cocaine residue when taking a picture of the weapon — is debunked by the fact that Weiss received photos of the weapon in the case file he has had for years.

The prosecution produced a Delaware state police case file, which includes a summary of an interview Mr. Biden gave police in October 2018 and other information about the purchase, discard, and recovery of the firearm, as well as evidence photos from its case file. [my emphasis]

They didn’t need a new photo. They have photos! They needed evidence they didn’t bother to seek in the over five years since the gun was seized.

But all that comes against the background of three arguments about how and why the plea deal fell apart, something that Weiss has very assiduously avoided. In the diversion reply, Lowell argues that judicial estoppel prohibits Weiss from claiming the diversion agreement is not valid because Leo Wise stood before Judge Noreika and made assurances about the degree to which the diversion would protect Hunter’s rights. In the selective prosecution reply, Lowell reminds Judge Noreika that her concerns with the plea deal were not that it was not draconian enough, but rather, whether Hunter would be protected to the extent he understood he would be.

The Court did not accept the Plea Agreement that day, but the Court was clear: “I’m not saying I’m not going to reject the plea, I’m not saying I’m going to accept the Plea Agreement. I need more information.” (7/26/23 Tr. at 109.) The Court expressed no concern with whether the parties had struck a fair bargain, rather the concern the Court expressed to Mr. Biden was with “making sure that your plea gets you what you think it gets.” (Id. at 108.) The Court wanted assurances that the immunity provision in the Diversion Agreement that would have the Court decide whether Mr. Biden had breached his obligations under the Diversion and Plea Agreements before the prosecution could charge Mr. Biden with conduct that would otherwise be immunized was constitutional. (Id. at 105–06.) In other words, the Court’s concern was with making sure that Mr. Biden received the benefit of the bargain that he struck, not with changing that bargain to be more punitive against Mr. Biden.

At the end of that filing, Lowell describes how David Weiss sat in the back of Judge Noreika’s courtroom, watching Leo Wise advocate for measures (negotiated by Lesley Wolf before Wise was brought in) to protect Hunter.

On July 26, 2023, Mr. Weiss sat right behind his prosecution team when they urged this Court to accept those agreements.

As of today, the motion for a subpoena for Trump has been fully briefed for 50 days, but Judge Noreika has not addressed it.

Indeed, the only thing we’ve heard from Judge Noreika since she granted Lowell’s request for a delay to do all this briefing on October 19 was her order granting my request to unseal the Apple warrants in this case (And thanks to Judge Noreika and her courtroom deputy and the clerks who scrambled to make it possible for doing so). That is, it’s not clear yet what she makes of these competing arguments.

But it is absolutely the case that Leo Wise stood before her and made certain representations about the plea deal. And my impression at least accords with Lowell’s: that her concerns arose from protecting Hunter Biden’s rights, not granting Jim Jordan the head of the President’s son.

Judge Noreika could just rule that the diversion agreement is binding (which as noted in my ugly table, will have interesting repercussions for the LA case). She could order an evidentiary hearing, granting the long-briefed motion for subpoenas.

Based on reports, in the initial appearance in the LA case, Judge Scarsi implied he’d be cautious against granting discovery about deliberations (presumably including the recommendation Los Angeles US Attorney Martin Estrada’s top prosecutors made about problems with the case). But he sounded more amenable to discovery about other topics — possibly the threats that Derek Hines treats as a Hollywood plot, including threats targeting Estrada.

In three weeks, Abbe Lowell will file most of these same motions before Scarsi, and if any work — especially the selective prosecution one — it might make the Delaware one unsustaintable as well.

Again, I’m not saying these will work. Selective prosecution has been made all but impossible to argue, for example.

But I am saying that Lowell is increasing his chances for success.

IRS First Received Hunter Biden’s iCloud Data on Same Day White House Released the Perfect Phone Call

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The Delaware District Courthouse has unsealed much of what Judge Maryellen Noreika ordered unsealed last week. The major piece still outstanding are the Attachments for the most recent warrant describing the crimes they’re investigating and the things they’re permitted to seize, which is actually one of the most important things I was seeking to have unsealed.

The story the warrants generally tell is that investigators obtained Hunter Biden’s entire iCloud account on September 25, 2019, literally the same day it became clear Donald Trump had demanded an investigation into Hunter Biden. Then they got the laptop. The laptop led them to discover four device backups of interest. In summer 2020, they obtained warrants specific to those devices to access data already in hand.

And then, years later, 81 days after charging Hunter Biden for gun crimes, they obtained a warrant to search all that same digital evidence for evidence of gun crimes.

They really are claiming they didn’t think to search all the data they had for evidence of gun crimes until after they had the indictment in hand, 81 days after they indicted the President’s son. That is, at least for the moment, they are claiming that they never bothered to check for gun crime evidence in Hunter Biden’s texts until after they charged him.

And they made that admission in a filing arguing, “oh sure, we’ve been planning on charging these gun crimes for years.”

This late disclosure will undoubtedly raise a lot of questions about whether any of this data was presented to the grand jury (particularly given that Abbe Lowell would only have had notice of this warrant not long before we got it); if it was, it’d strongly suggest that investigators unlawfully searched Hunter’s data for gun crimes. Though thus far, that’s the most likely way any of this becomes illegal under the very generous precedents for criminal investigators.

Before I look more closely at what the individual warrants show, remember that these are not the only warrants. We know from this filter document Joseph Ziegler shared, for example, that investigators also searched this same data for FARA crimes — so there are almost certainly a parallel sent of warrants for those crimes. There are known warrants, such as for the Google account tied to Hunter’s Rosemont Seneca email, for other content that would have been less interesting for the gun crimes. There’s some epic funkiness with the treatment of the laptop.

But this is the story David Weiss has decided he can bring to a jury: that investigators obtained two parallel sets of Apple data, and very belatedly, literally after they indicted, decided to search it for alleged gun crimes that were committed before they obtained the first warrant.

August 29, 2019: Original iCloud warrant; warrant return

The first warrant unsealed obtained all the content for Hunter’s iCloud account. It permitted the search for evidence pertaining to the three tax crimes charged in Los Angeles: 26 USC 7201, 26 USC 7203, and 26 USC 7206(1) (though the probable cause statement could not have covered those charges for 2018, the primary tax year charged, as those alleged crimes had not been committed yet).

It asked for the entire content of the iCloud account, from January 2014 through the present; I originally questioned how they could show probable cause to obtain information from 2018 and 2019, as no tax crimes could have been committed yet in those years, but realize that so long as Hunter hadn’t paid his earlier tax years, the willful failure to pay continued.

The warrant did not mention Burisma by name, though Burisma might be covered under permission to search for evidence about business operations. The warrant did not mention the sex workers on which this entire investigation was predicated, but those would be covered under “personal expenditures.”

The warrant only asked for content related to one of the several email addresses Hunter used with Apple, RHBDC at iCloud, though probably got everything in response under Apple’s normal response to legal process. That could become pertinent later.

Here’s how Derek Hines described it in his response filing that first identified these warrants:

In August 2019, IRS and FBI investigators obtained a search warrant for tax violations for the defendant’s Apple iCloud account. 2 In response to that warrant, in September 2019, Apple produced backups of data from various of the defendant’s electronic devices that he had backed up to his iCloud account.

2 District of Delaware Case No. 19-234M

There are three things of interest in Hines’ description. He emphasizes that both the FBI and IRS were on this warrant, which might be an attempt to cover later plain view expansions of this investigation. He suggests, inaccurately, that the warrant focused on backups from Hunter’s phone, which is likely because he only wants to introduce texts at trial, not emails.

Most interestingly, Hines notes that the warrant was served in August but the data was returned in September.

The warrant shows that before investigators filed for a warrant in August 2019, they twice preserved Hunter’s data, on April 11, 2019 (which is the day Joseph Ziegler submitted his tax package to DOJ Tax for approval to open a grand jury investigation), and July 11, 2019.

The docket itself shows that Magistrate Judge Sherry Fallon issued a Magistrate’s order on September 12 (which remains sealed). That suggests that Apple may have challenged this warrant, delaying the return of the content until after that.

We may learn more about the content of this order in motions in the Los Angeles case (though once it was issued, investigators would be working under a Good Faith exception). As the July 2020 warrant reveals, Apple turned over the content on September 25, 2019 — the very day the White House would release the Perfect Phone Call revealing that Trump had been demanding an investigation into Hunter Biden personally.

On August 24, 2020, investigators sought a renewal of the original order sealing the docket. At least from what got unsealed, that’s the only actual renewal of sealing orders investigators ever got.

December 13, 2019: Original laptop warrant; warrant return

The second warrant obtained authorized the search of the laptop turned over from John Paul Mac Isaac. Here’s how Hines explained it:

Investigators also later came into possession of the defendant’s Apple MacBook Pro, which he had left at a computer store. A search warrant was also obtained for his laptop and the results of the search were largely duplicative of information investigators had already obtained from Apple. 4

4 District of Delaware Case No. 19-309M

It was actually served by the FBI agent who served the subpoena on JPMI on the CART guy.

Mike Waski may know details of how — according to JPMI — the laptop came to be accessed four days before this warrant. Or he could be “computer guy” who didn’t bother to validate the content of the laptop for over 10 months.

In their (absolutely atrocious) coverage of these warrants, NYPost claimed to have seen an earlier warrant.

A third search warrant was obtained Dec. 13, 2019, to examine the now-first son’s infamous Apple MacBook Pro laptop and a hard drive — the same one containing a copy of Biden’s laptop that computer store owner John Paul Mac Isaac made to give to Rudy Giuliani’s lawyer Robert Costello, an earlier warrant reviewed by The Post shows.

Given that the rest of Priscilla DeGregory’s story betrays not the remotest inkling of understanding of what she’s looking at, McGregory may be thinking of the December 9 subpoena to JPMI, but I suspect Abbe Lowell may learn if there’s an earlier one when he points out that according to JPMI, the FBI accessed the content of this laptop before the December 13 warrant, possibly in a way that is forensically unsound.

Attachment B in this warrant is similar to the one in the first warrant. It has this boilerplate paragraph, which would cover the government if they sent Bill Barr a copy on December 14.

But, largely because of the difference between cloud data and devices, it has different language pertaining to attribution.

The iCloud warrant describes it this way:

Hunter is undoubtedly the email account owner. But there is very good reason to believe that between January 1, 2014 and August 29, 2019, Hunter was not the only user. Indeed, this scope of time would cover the compromise that Lev Parnas says happened when Hunter was in Kazakhstan.

Among other things, this language should put the government on the hook for aberrations in Hunter’s iCloud access in advance of treating the laptop uncritically.

Now compare that with the attribution language used on the laptop warrant.

Most expansively, this device was only owned starting in October 2018 (when Hunter no longer owned it and whether he ever owned the hard drive remain very much contested), and I’ve got questions about whether others used it. And JPMI undoubtedly “used” both devices.

Bookmark that detail.

July 10, 2020 iCloud warrant; warrant return

The permission to search for passwords as evidence of “user attribution” could become mildly important given the third warrant which (as I’ve already noted), Derek Hines simply mentions as an afterthought.

a follow up search warrant, District of Delaware Case Number 20-165M.

In July 2020, investigators used this warrant to access content already in their possession tied to four specific devices. The warrant describes clearly that this is the content they received from Apple on September 25, 2019 (again, the same day the Perfect Phone Call transcript revealed that Trump was demanding investigations just like this one). And the warrant clearly shows that the data was stored at the FBI office in Wilmington.

I’ll return to the devices later. With these devices, as with all of Hunter’s iCloud content and devices from the period of his addiction, investigators would need to prove that content on the devices was put there while they were still in Hunter’s possession and that he was the one who backed up the phones.

But what Derek Hines is not telling Judge Maryellen Noreika is that the reason investigators came to have an interest in these four devices is because they accessed the content of those four devices from the laptop.

They got a warrant to access the same content from the Apple production. But they don’t claim to have obtained a warrant to access the same content on the laptop, and we know thanks to Gary Shapley that they only accessed one of these devices using a password they found on the laptop (again, that particular factoid is what sent me down this rabbit hole in the first place).

I’ll come back to the question of whether that’s a problem or not.

December 4, 2023: Post-indictment warrant; warrant return (less attachments) Attachments AB

Finally, there’s the December 4, 2023 warrant, the reason I asked to get these unsealed in the first place.

Law enforcement also later obtained a search warrant to search the defendant’s electronic evidence for evidence of federal firearms violations and to seize such data. 5

5 District of Delaware Case No. 23-507M.

When Derek Hines described this warrant, he tried to hide that by “later” he meant, “81 days after obtaining the indictment,” and — from the submission of the signed return dated yesterday, it appears that Special Agent Boyd Pritchard was still searching this content when the dockets were unsealed yesterday.

As noted above, the Delaware Clerk has not yet complied with Judge Noreika’s order with regards to this warrant. I’m going to see if I can’t get them to do so and if I succeed I’ll add some update. But for now, I can’t compare search protocols with those earlier warrants or see what crimes of which Pritchard said he was search for evidence. [Update: They have now provided the Attachments]

The Attachments basically just trace through the three earlier warrants (iCloud; laptop; backups — though they are not in order), then authorize searching the content for evidence of the gun crimes charged 81 days earlier.

Effectively, three days after a meet-and-confer phone call with Abbe Lowell following up on all the discovery requests David Weiss was blowing off, including these two bullets, they obtained a warrant to access his texts — they claim, for the very first time.

The user attribution could have some interesting repercussions, not least because it’s not clear these devices were “used” by Hunter when the content was added to them.

Of some interest, in the response, Hines didn’t mention the call from Joe Biden telling Hunter to get help reported by the Daily Mail. Since investigators seem to have so little appreciation for what happened with Hunter’s devices before and after the FBI obtained this warrant, they may not understand there’s evidence in the public record that won’t exist on the laptop, which therefore they would not have gotten a warrant to access.

In a different world, the serial discovery of what a mess Hunter’s digital mess was might have led law enforcement officers to start investigating whether there was a reason it was such a mess.

Not these guys. They just decided to take the assist criminals gave them to investigate Joe Biden’s son.

And with regards to the Apple content (it’s likely investigators got Hunter’s Rosemont Seneca account first, which shows even more evidence of deliberate compromise), they first received it on the same day the White House revealed that Trump had extorted Volodymy Zelenskyy for just such an investigation.

Updated with the AB Attachments from the most recent warrant.

Update: Corrected my reference to Matt/Mike.

Update: Corrected Pritchard’s first name now too. [Sigh!]