The Evolving Media Strategy of Lev Parnas

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

Make of them what you will.

The limits of firsthand experience

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Everyone’s mob past

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

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

Parnas describes the mob ties of his ex-wife.

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

But then the descriptions stop.

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

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

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

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

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

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

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

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

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

Igor

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A continued unpersuasive explanation for his Marie Yovanovitch attacks

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A different approach to Dmitry Firtash’s equities

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

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

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

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

He didn’t get that subpoena.

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

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

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

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

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

Khanna: What did they say to Bill Barr?

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

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

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

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

Parnas: Absolutely.

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

It’s about motive.

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

“It’s not true. It wasn’t closed down,” William Barr told The Federalist on Tuesday in response to Democrat Rep. Jamie Raskin’s claim that the former attorney general and his “handpicked prosecutor” had ended an investigation into a confidential human source’s allegation that Joe Biden had agreed to a $5 million bribe. “On the contrary,” Barr stressed, “it was sent to Delaware for further investigation.”

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

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

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

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

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

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

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

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

MR. WISE: Yes.

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

MR. CLARK: Your Honor, the Plea Agreement —

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

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

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

MR. WISE: Then there is no deal.

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

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

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

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

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

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

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

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

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

Is that an accurate statement?

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

[snip]

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

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

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

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

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

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

Bill Barr lies to Kaitlan Collins’ face

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

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

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

COLLINS: What was your experience?

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

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

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

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

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

COLLINS: That sounds like pressure. [my emphasis]

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

In mid-October I received a call from the President, which was the last time I spoke to him prior to the election. It was a very short con-versation. The call came soon after Rudy Giuliani succeeded in making public information about Hunter Biden’s laptop. I had walked over to my desk to take the call. These calls had become rare, so Will Levi stood nearby waiting expectantly to see what it was about. After brief pleasantry about his being out on the campaign trail, the President said, “You know this stuff from Hunter Biden’s laptop?”

I cut the President off sharply. “Mr. President, I can’t talk about that, and I am not going to.”

President Trump hesitated, then continued in a plaintive tone, “You know, if that was one of my kids—”

I cut him off again, raising my voice, “Dammit, Mr. President, I am not going to talk to you about Hunter Biden. Period!”

He was silent for a moment, then quickly got off the line.

I looked up at Will, whose eyes were as big as saucers. “You yelled at the President?” he asked, confirming the obvious. I nodded. He shook his head in disbelief.

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

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

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

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

The aftermath of all this was stunning.

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

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

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

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

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

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

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

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

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

CNN has largely circumscribed the effort to frame Joe Biden

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

WaPo Gives Bill Barr Platform to Attack Joe Biden without Mentioning Barr’s Role in Framing Biden

WaPo wrote a story on Bill Barr’s statement on Fox News that he would support Trump over Biden because Biden would represent a “continuation of the Biden administration is national suicide.”

On Wednesday, Barr maintained that voting for Trump would still be “Russian roulette” but claimed that a “continuation of the Biden administration is national suicide, in my opinion.”

Nothing in this story is news. It was always clear Barr was going to vote against Democrats, whom he decries (though the article notes that last July, he claimed to not know).

Much of the story simply regurgitates Barr’s own propaganda about how he is a “vocal critic” of Trump, without mentioning that before he criticized Trump’s Big Lie, Barr kicked it off, by attacking mail-in ballots. It doesn’t mention that the same people, Rudy Giuliani and Sidney Powell, whose election lawyering Barr attacked, Barr protected and enabled as Attorney General, shielding Rudy from any legal consequences for soliciting campaign dirt from known Russian spies, and helping Sidney Powell attempt to reverse the prosecution of Mike Flynn.

Crazier still, it makes no mention — none! — of the side channel Barr set up to funnel that dirt Rudy obtained from known Russian spies.

As I’ve reported repeatedly, in January 2020, Bill Barr ordered Scott Brady to conduct a side review of the dirt Rudy Giuliani collected from Russian spies and others. Via still unexplained circumstances, that side channel resulted in a claim from Alexander Smirnov being shared first with Brady, and then with Hunter Biden prosecutor David Weiss, a claim that Joe Biden had accepted a bribe from Burisma. After having received the lead in 2020 and not pursued it, Weiss revisited it after Barr made public comments last summer, as Republicans in Congress were chasing the claim.

That push to review what is now known as the Smirnov allegation resulted in David Weiss reneging on the plea deal he made with Hunter Biden and chasing the Smirnov allegation, only to discover Smirnov made it all up.

WaPo knows these details. A long piece on Smirnov described the side channel, though did not mention that Brady claimed to have verified precisely the travel details that Weiss alleges debunk Smirnov’s claims.

In October 2023, several months after Grassley’s release, Scott Brady, the former U.S. attorney for the western district of Pennsylvania, appeared before the GOP-controlled House Judiciary Committee to answer questions about the claims. Brady, who did not respond to a request for comment, had been tasked in 2020 by then-Attorney General William P. Barr to review information about Biden gathered in Ukraine by Trump attorney Rudy Giuliani.

Brady characterized the bribery claims as not thoroughly vetted as of 2020. At the same time, he told the committee that it was “correct” that the FBI considered that person credible at the time of the allegations.

And a piece from Devlin Barrett, listed as a contributor to this story, wrote a piece that obscured rather than highlighted the insanity behind Weiss’ decision to renege on the scope of the plea deal he made with Hunter to chase Smirnov’s allegations anew (Devlin did not mention Barr’s role in pitching the allegation in both 2020 and 2023).

Smirnov’s account was passed along to investigators in Delaware who were involved in the Hunter Biden investigation — a move which years later led to the charges against Smirnov, these people said.

U.S. authorities said that when agents questioned Smirnov again in 2023, he repeated some past lies, changed other parts of his story and offered new falsehoods after claiming to have met with Russian officials.

Bill Barr’s decision to set up a side channel to funnel dirt collected by Donald Trump’s lawyer on Trump’s opponent’s son to prosecutors already investigating Hunter Biden led directly to Joe Biden being framed. And it remains unexplained how Scott Brady came to find the lead — or whether it has anything to do with DOJ’s reported closure of an investigation into Mykola Zlochevsky in this same period.

At this point, Barr’s role in setting up a side channel that led to Biden being framed ought to be included in all discussions of his animus to Biden or his decision to back Trump. All the more so given that Jerry Nadler referred Scott Brady to at least DOJ IG for investigation of the way he misled Congress about his vetting corroborating Smirnov’s claims. After all, such an investigation may lead to places that scrutinize Barr’s own actions.

Sure Barr is going to back Republicans over Joe Biden, the guy he helped frame. But if the investigation into how that side channel ended up framing Biden gets very far, Barr may have far more self-interested reasons in ending Democratic control of DOJ.

The Varieties Of Activist Judges

The Warren Court

Ever since the 1950s conservatives have railed against “activist judges”. They mean the Warren Court. because it took a broader view of the Equal Protection Clause of the 14th Amendment than the Reconstruction-Era Supreme Court did in cases like The Civil Rights Cases.

The Warren Court said in Brown v. Board that Black kids must get the same education that White kids get, and the way to insure that was to put all the kids together in the same schools.

In Gideon v. Wainwright, the Warren Court said that the right to counsel in criminal cases was meaningless for all of the people who didn’t have enough money to pay a lawyer. It forced states to provide counsel for every defendant who couldn’t pay for one.

The Warren Court established a zone of personal privacy in Griswold v. Connecticut. It established a right to abortion in Roe v. Wade.

These and many other Warren Court cases have a common thread. They all improve our democracy by making sure that more and more people share in the rights and benefits of being an American citizen. Some of them increase our ability to participate in our democracy, as in Baker v.Carr. Some increase our personal freedom. Some insure that everyone receives a greater level of protection from government prosecution or interference. All of them take the Reconstruction Amendments seriously, and try to implement them, as Congress expressly intended.

The Warren Court’s broad reading of the Constitution horrified conservatives because it upset a century of Constitutional decisions and laws designed to insure the suppression of Black people and women and insure White male supremacy.

A very brief discussion of the theory of Constitutional and Statutory interpretation

Over the centuries the Common Law and US jurisprudence worked out a number of theories of interpretation of the Constitution. In 2021, the Congressional Research Service issued nine very short essays under the heading The Modes of Constitutional Analysis. Here’s an index.

1. The Modes of Constitutional Analysis: An Introduction (Part 1)

2. Textualism

3. Original Meaning

4. Judicial Precedent

5. Pragmatism

6. Moral Reasoning and the National Ethos

7. Structuralism

8. Historical Practices

9, The Constitutional Avoidance Doctrine

These essays provide an introduction to the basic concepts with examples, and describe some of the pros and cons of each mode.

In general, SCOTUS decisions and dissents rely on a combination of these modes of analysis. Griswold v. Connecticut, with its concurring and dissenting opinions  is a good example of the application of most of these modes of analysis.

Warren Court Jurisprudence

The Warren Court’s decisions follow a tradition laid down in the English Common Law and imported to the US as part of tour legal system. Courts hear hundreds of cases, and they write down the facts, the decisions and the rationale for their rulings. These accumulate over time, and gradually the courts build up principles which they follow in current cases. These rules are gathered into books and taught to lawyers who can use them to advise clients of likely outcomes. This is what is meant by the terms stability and predictability used in the CRS essays.

Griswold is a good example. The majority held that the Constitution protected a zone of privacy for Americans. The words do not appear in the Constitution. William Douglas, writing for the majority, examined a number of cases construing different parts of the Bill of Rights, and synthesized them into  the proposition that state and federal governments are not allowed to invade people’s personal lives or interfere with their private decisions. Marriage is one of those areas. As Douglas said:

Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.

Conservatives mock the use of the terms penumbra and emanation used by Douglas, but they have-no acceptable answer for this question. Each of the modes of analysis (other than originalism) support this outcome. That didn’t stop conservatives from attacking the Warran Court,  and it didn’t stop them from pushing government into our private lives either.

Conservative Activism

In  the 1970s rich conservatives began to fund efforts to reverse the Warren Court decisions. They set up organizations like the Federalist Society and others led by Leonard Leo to push conservative ideas through law professors and legal think tanks.

These academics produced motivated scholarship aimed at getting rid of any mode of constitutional analysis that could be used to expand rights. Conservatives argued that only textualism and originalism, and perhaps judicial precedents from the 19th and early 20th Centuries, are legitimate forms of Constitutional analysis. Everything else is activist. These conservative academics produced a cadre of movement lawyers who now staff groups funded by rich right-wingers. like Americans Defending Freedom. They generated a roster of potential judges committed to the conservative legal project.

Here’s an explanation from Nelson Lund, a professor at the Antonin Scalia Law School at George Mason University, writing in the New York Times.

The goal of the conservative legal movement has been to replace the result-oriented adventurism of the Warren court during the 1950s and 1960s with respect for the original meaning of the Constitution, including its allocation to Congress of the sole authority to enact and amend statutes. If the government wins either of these cases, let alone both, that movement should recognize that its project has not succeeded.

The two cases Lund is talking about are US v. Rahimi and Garland v. Cargill. Rahimi is the subject of a domestic abuse order under which he may not possess guns. Cargill sells bump stocks which are barred by a federal rule. Lund seems to think it would be “activist” to uphold democratically enacted laws, rules, and court orders restricting violent domestic abusers, and stop the sale of attachments that, as he puts it, “facilitate mass murder.”

Lund’s statement that conservatives want to protect the Congressional power as the sole authority to enact and amend statutes is laughable. His interpretation of the Constitution bars Congress from regulating firearms at all, and from empowering federal agencies to act under statutory limitations.

Lund and the Roberts Court refuse to consider the real-world results of their ideology. It’s nothing to them if women suffer and die, or if not-white votes are suppressed or if domestic violence deaths rise, or mass murders plague churches, schools, concerts, and shopping malls.

The judicial activists on the Roberts Court demonstrate the damage an ideologically-driven and unconstrained SCOTUS can do to democracy.

Judge Maryellen Noreika’s Unconstitutional Concerns about Unconstitutional Concerns

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

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

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

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

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

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

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

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

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

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

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

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

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

Judge Noreika refashions her intervention in the plea hearing

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

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

[snip]

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

MR. WALLACE: It would.

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

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

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

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

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

Noreika exhibited knowledge of Bray’s lack of signature

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

[snip]

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

[snip]

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

[snip]

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

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

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

[snip]

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

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

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

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

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

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

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

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

Noreika shifts her demands for sign-off power

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

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

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

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

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

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

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

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

But there’s a procedural one that Noreika overlooks.

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

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

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

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

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

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

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

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

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

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

A laudably hard grader

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

Scarsi’s attentiveness carries over to this opinion.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I do too.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Then he abandons that standard.

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

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

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

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

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

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

Get Me Roger Stone

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

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

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

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

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

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

[snip]

my merry band of crooks, creeps, and outcasts

[snip]

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Scarsi accuses Lowell of post hoc argument

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Lowell did neglect to notice one important detail

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

Scarsi doesn’t mention Alexander Smirnov.

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

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

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

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

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

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

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

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

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

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

SDNY Rules: A Tale of Three Fraudsters

I was thinking, as I was watching last week’s Hunter Biden impeachment hearing that there ought to be a pause where someone could explain how Southern District of New York works (or doesn’t) with cooperators.

After all, two of three witnesses in the hearing, Jason Galanis and Lev Parnas, had been convicted of fraud by SDNY.

Galanis claimed (after 2:01 and his opening statement) that he tried to implicate Hunter in his crimes, only to have those inquiries be “quashed” on order of SDNY.

Parnas claimed, both in his opening statement and then in an exchange with Ro Khanna (after 2:28), that he was arrested to shut him up.

Parnas specifically said that he and his attorney tried to reach out to Scott Brady.

Parnas did not mention SDNY, though both pretrial and during sentencing, SDNY described that Parnas attempted to proffer testimony but SDNY was unimpressed with Parnas’ candor.

As SDNY wrote in one of those filings, “public spectacles, leaks, and social media postings could undermine his credibility and diminish his value as a potential cooperating witness.” They also disputed whether Parnas was telling the full truth.

I have questions myself, as Parnas (in his hearing statedment) claimed he had been “smeared” by allegations that he tried to get Marie Yovanovitch fired.

I was initially accused of being involved in a plot to remove Marie Yovanovitch, the U.S. Ambassador to Ukraine whom Trump had fired in April 2019. I was smeared by this false information.

It wasn’t false! Here’s how Parnas, in his book, describes telling Trump that Yovanovitch had to go in 2018.

She was unpopular with Ukraine’s wealthy and those who planned to be. They were well aware that any serious investigations would easily expose them and their alignment, if not outright fealty, to the power brokers in Russia, not their own country (including more than a few elected politicians). With my many connections in various fields, there was a consensus about Yovanovitch — she had to go.

[snip]

In fact, more of the Ukrainians I knew were complaining about her than they were about Putin or the war. When I pressed them on what really made Yovanovitch a problem, they told me that she had been saying terrible things about Trump.

So, at the table, I started to tell him about her. Where we start is … we gotta get rid of the ambassador, I tell him.

At times, in his book, Parnas is quite oblique about whom he was dealing with in Ukraine who might have said such things (though elsewhere the memoir is quite clear he was working with mobsters and oligarchs). And given that Parnas alleged in the hearing that Pete Sessions, whose letter calling for Yovanovitch’s ouster Parnas personally delivered to Trump, was involved in his actions, he was tacitly admitting that Yovanovitch’s firing was a part of it. Effectively Parnas appears to be packaging this as all derivative of Trump’s efforts, starting later in 2018, to get dirt on Hunter Biden. And the reason Parnas was ultimately not charged with FARA for those efforts likely has as much to do with Rudy Giuliani’s corrupted phones and Victoria Toensing’s JD as anything else.

SDNY has rules about what it demands from cooperators. That requires coming clean on all criminal exposure.

And that’s important background to efforts to hold Trump accountable.

SDNY laid some of this out in its Michael Cohen sentencing memo, years ago.

With respect to Cohen’s provision of information to this Office, in its two meetings with
him, this Office assessed Cohen to be forthright and credible, and the information he provided was
largely consistent with other evidence gathered. Had Cohen actually cooperated, it could have
been fruitful: He did provide what could have been useful information about matters relating to
ongoing investigations being carried out by this Office. But as Cohen partially acknowledges, it
was his decision not to pursue full cooperation, and his professed willingness to continue to provide information at some later unspecified time is of limited value to this Office, both because he is under no obligation to do so, and because the Office’s inability to fully vet his criminal history and reliability impact his utility as a witness.

Indeed, his proffer sessions with the SCO aside, Cohen only met with the Office about the
participation of others in the campaign finance crimes to which Cohen had already pleaded guilty.
Cohen specifically declined to be debriefed on other uncharged criminal conduct, if any, in his
past.4 Cohen further declined to meet with the Office about other areas of investigative interest.
As the Court is undoubtedly aware, in order to successfully cooperate with this Office, witnesses
must undergo full debriefings that encompass their entire criminal history, as well as any and all
information they possess about crimes committed by both themselves and others. This process
permits the Office to fully assess the candor, culpability, and complications attendant to any
potential cooperator, and results in cooperating witnesses who, having accepted full responsibility
for any and all misconduct, are credible to law enforcement and, hopefully, to judges and juries.
Cohen affirmatively chose not to pursue this process. Cohen’s efforts thus fell well short of
cooperation, as that term is properly used in this District.5

For this reason, Cohen is not being offered a cooperation agreement or a 5K1.1 letter. Within the confines of the SCO investigation itself, the Office does not dispute that Cohen’s
assistance to the SCO was significant. But because Cohen elected not to pursue more fulsome
cooperation with this Office, including on other subjects and on his own history, the Office cannot
assess the overall level of Cohen’s cooperation to be significant. Therefore, the Office submits
that, in fashioning a sentence on its case, the Court afford Cohen credit for his efforts with the
SCO, but credit that accounts for only a modest variance from the Guidelines range and does not
approach the credit typically given to actual cooperating witnesses in this District.

4 At the time that Cohen met twice with this Office, through his attorneys, he had expressed that he was considering – but not committing to – full cooperation. Cohen subsequently determined not to fully cooperate.

5 Cohen’s provision of information to the Office of the New York Attorney General (“NY AG”) warrants little to no consideration as a mitigating factor. This Office’s understanding is that the information Cohen provided was useful only to the extent that he corroborated information already known to the NYAG. More importantly, Cohen provided information to the NY AG not as a cooperating witness who was exposing himself to potential criminal or civil liability but instead as a witness who could have been compelled to provide that testimony. Fulfilling that basic legal responsibility voluntarily does not warrant a reduced sentence – particularly when one waits until he is charged with federal crimes before doing so.

Similarly, this Office’s understanding is that the New York State Department of Taxation and Financial Services (“NYSDTF”) subpoenaed Cohen for information about the payment of his own state taxes, and any claimed “cooperation” with NYSDTF appears to consist solely of providing that entity information that they would otherwise have obtained via subpoena.

Cohen’s failed SDNY cooperation may become an issue in today’s NYDA hearing on Trump’s fraud to cover up the Stormy Daniels hush payments. Judge Juan Merchan will review the dispute regarding NYDA’s efforts to get the Cohen file from SDNY, which Christopher Conroy laid out in this declaration. The short version is that NYDA provided Cohen’s SDNY related materials, but not the tax records otherwise collected from SDNY or Mueller-related 302s that SDNY did not yet have.

But in both cases, with Cohen and Parnas, any cooperation came amid Bill Barr’s efforts to shelter Trump from implication in their crimes. And while I do think Parnas is engaged in some repackaging of his past actions, I also think there’s increasing evidence that Barr was worried about his own implication in Parnas’ crimes.

As we may see in Alvin Bragg’s case, this adds difficulty to using a witness like Cohen, whose candor might be questioned (but who, like Parnas, has receipts). Because Barr had a habit of making such things worse.

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

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

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

Later that same evening on June 6, 2023, at or around 5:47 PM EST, AUSA Wolf emailed me proposed language for the immunity provision that read: “How about this- The United States agrees not to criminally prosecute Biden, outside of the terms of this Agreement, for any federal crimes encompassed by the attached Statement of Facts (Attachment A) and the Statement of Facts attached as Exhibit 1 to the Memorandum of Plea Agreement filed this same day.” (Emphasis in original.)

[snip]

Shortly after that email, I had another phone call with AUSA Hanson, during which AUSA Hanson requested that the language of Mr. Biden’s press statement be slightly revised. She proposed saying that the investigation would be “resolved” rather than “concluded.” I then asked her directly whether there was any other open or pending investigation of Mr. Biden overseen by the Delaware U.S. Attorney’s Office, and she responded there was not another open or pending investigation.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Neither Weiss nor Lowell has yet addressed Smirnov directly

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

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

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

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

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

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

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

[snip]

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

But he has not done so in Los Angeles.

On August 29, prosecutors expressed overconfidence about their investigation

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

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

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

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

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

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

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

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

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

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

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

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

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

Weiss’ false claims about discovery into the side channel

Weiss did not do that.

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

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

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

A Is that a question?

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

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

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

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

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

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

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

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

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

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

Defendant’s attempts to manufacture discriminatory treatment or intent on behalf of the U.S. Attorney fall apart under the most minimal scrutiny. First, defendant obliquely references that “IRS files reveal that [Richard Donoghue] further coordinated with the Pittsburgh Office and with the prosecution team in Delaware, including issuing certain guidance steps regarding overt steps in the investigation.” ECF 58, at 2-3 & n.3. Looking behind the defendant’s ambiguously phrased allegation reveals the actual “overt steps” involved: (1) the U.S. Attorney making an independent assessment of the probable cause underlying a warrant and (2) a direction by Mr. Donoghue that the Delaware investigation receive the information from the Pittsburgh team, which was being closed out. See ECF 58, at 3 n.3 (citing memorandum of conference call). Assessing the validity of a warrant and merely receiving information from other investigating entities does nothing to show any disparate treatment or animus. Next, defendant alleges that “certain investigative decisions were made as a result of guidance provided by, among others, the Deputy Attorney General’s office.” ECF 58, at 3 n.4. In fact, the source cited revealed that the guidance was simply not to conduct any “proactive interviews” yet. Likewise, defendant’s last attempt to create a link involved guidance not to make any “external requests (outside of government),” which followed the long-standing Department of Justice policy to avoid overt investigative steps that might interfere with ongoing elections. See ECF 58, at 3 n.5; cf., e.g., Federal Prosecution of Election Offenses 40 (2d ed. 1980). In other words, the most defendant claims is that the Deputy Attorney General’s office was aware of and involved in some specific investigatory decisions in the most banal fashion possible—by waiting to take specific investigative steps at certain times out of caution.

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

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

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

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

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

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

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

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

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

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

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

Weiss has a problem.

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

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

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

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

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

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

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

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

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

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

“Not Your Mother’s Ireland Anymore”

Forty years ago today, I arrived in Ireland for the first time.

My family was taking one of those pilgrimages that Irish-American families take, or took at the time. Along with so many Irish people, over the course of 60 years in the 19th Century, my great-grandfather and all known ancestors of six other of my great-grandparents had left Ireland for the United States. My father grew up in a working class city outside of Philly that had an Irish Church, an Italian Church, and a Polish Church — as my relatives tell it, everyone was Catholic — with social halls and other civil society to match. It remained, even in my teenage years, the kind of place where Irish-Americans got jobs as cops. So he was raised and so we were raised investing a lot in that Irish-American identity.

We arrived in Ireland, with the names of distant cousins in hand, to see what this place called Ireland was really like.

I remember three things about that pilgrimage most vividly.

First, the night before we left, we went to the Medieval banquet at the Bunratty Castle, a totally schlocky tourist show, now just 20 minutes up the road from where I live. They’ve been doing the banquets ever since, and have expanded into Victorian culture tourism. I recall they gave you just a knife with which to eat your steak. Maybe I was permitted to drink mead.

My family did visit one of those distant cousins, in a 4-room house where a bunch of kids had been raised. The cousin of the same generation as my parents wanted to get out of the too-small house, so we walked down the street to the local pub at a bend in the road. The pub had a thatched roof. There was a fox hunt going on, so there were horses tied up outside the pub. I once believed, but was probably wrong, that that pub was just a half hour from where my now-spouse had lived all his life. My spouse and I have spent decades looking for that thatched roof pub, with no success. It provides a nice excuse to keep looking, anyway.

My family departed from Shannon, but we arrived in Dublin and so were in the Capitol on St. Patrick’s Day. It was quiet and much was closed on account of the bank holiday. One after another person asked us, with puzzlement, why anyone would come from New York to Dublin for St. Patrick’s Day, because New York and Chicago were where it was at on St. Patrick’s Day.

It’s a bigger deal in Ireland now than it was when my family wandered the famous heart of Dublin on a bank holiday so many years ago (but then, so is Halloween, to my spouse’s chagrin). We’ve got parades and everything is lit up green and oh by the way the Irish team won the Six Nations Championship in rugby, again, yesterday.

But so much of what we know as St. Patrick’s Day is about celebrating an American identity, the descendants of the Irish diaspora living in big cities with Irish-American political machines. And so much of that — a white, urban, working class identity — was consciously part of constructing race in America. So much of that was constructed as a way to reinforce conflict between freed slaves and cheap immigrant labor, starting in the 19th century, but still very real today.

I’m thinking of that manufactured conflict this year, as Trump tries to ride it back to the White House.

I’m thinking of that manufactured conflict this year, as outsiders seek to stoke the same conflict within Ireland. In the last year, the American far right had close ties to those stoking arson attacks and the Dublin riot, targeting migrants.

Since my spouse and I have moved back, we have a saying, “It’s not your mother’s Ireland.” For example, I used that line the first time I came back from a local Dunnes store location, the big Irish-owned grocery and department store chain. On one of my earliest visits to my in-laws, years ago, my mother-in-law and I went to the town center to the Dunnes store. I remember thinking it was slightly dingy with very little selection. Since then, Dunnes built a new location on the outside of that town, and Tesco built an even bigger store. Still, for over a year after I moved to Ireland, I avoided Dunnes because of my memory of that dingy, poorly-stocked store I visited with my mother-in-law years ago. So when I came back from the location on the outskirts of Limerick, I couldn’t wait to tell my spouse. This was like a Wegmans. Along with a reasonably stocked normal supermarket, it had a health food outlet, a Sheridan’s cheese counter, a high end bakery, a high end butcher counter, and a passable fishmonger. To this day, we call that supermarket “Not your mother’s Dunnes.”

Then there are the freeways, built with EU investment. We routinely drive on the freeway that didn’t exist when my father-in-law first took me to his home town outside of Galway and the freeway that didn’t exist when my spouse’s parents picked us up from Shannon on our first trip after we married, the one that now features a Barack Obama rest stop. Many of the roads in Ireland still suck — narrow lanes that require pull-offs for passing traffic. There aren’t a lot of roads I’m comfortable cycling on. But those freeways are totally new since my spouse and I got married, to say nothing of that pilgrimage 40 years ago.

But it’s the diversity that has really changed Ireland. Partly that’s being part of Europe. I joke, even still, that if I adopted a Czech or Spanish accent I might be recognized as an immigrant rather than perceived as a tourist, since so many recent arrivals came from Spain or Poland; people aren’t used to Americans coming to stay. In the last two years, there have been places in Clare County where I couldn’t figure out whether local colors were a Clare flag, or a Ukrainian one. Ireland remains more accessible to outsiders than some other parts of Europe; I hear a lot of Brazilian Portuguese on the streets, often students taking advantage of favorable student visas to learn English. There are immigrants from all over the world working in jobs at tech companies, many of the American multinationals. Most notably, though, are the number of migrants Ireland has welcomed, many (though not all) refugees from one or another war America has fought. Most families in Ireland have family members who’ve been welcomed in America, whether for a few years to work or, like my family, for six plus generations. It is only natural that Ireland return the favor.

And so, this year, rather than use Ireland’s privileged face time with the American President in advance of St. Patricks Day to discuss peace in Ireland or the fate of Ireland’s children in America, the Taoiseach pushed proud Irish-American Joe Biden to do something about his Gaza policy. Even the Irish, who take great pleasure in the long line of American Presidents it can claim, is peeved by America’s failures to do more about the Gaza crisis.

This time, Ireland is trying to teach America, not vice versa.

Happy Saint Patrick’s Day.

It’s not your mother’s Ireland anymore.

But if the American far right had its way — those who’ve fought to exacerbate centuries-old manufactured racism and with it fear — they would return Ireland to what it used to be.

image_print