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Hunter Biden’s Replies to His Motion to Dismiss

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

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

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

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

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

Here are the reply motions:

A Third Tie between Trump World and Alexander Smirnov

Before I point to a report on third known link between Alexander Smirnov — the FBI informant whose allegedly false claims about Joe Biden were laundered through a process Bill Barr set up for Rudy Giuliani in 2020 — and Donald Trump, let me lay out several details that are important to assessing the import of such ties.

  • Smirnov was admonished on the limits of permission to engage in Otherwise Illegal Activities on at least five occasions, including on August 7, 2020. That’s what the FBI does before they pre-approve you committing a crime because they want to learn about the other people committing crimes involved. For any given sketchy business someone reports Smirnov to have engaged in, there’s a distinct possibility he was engaging in it because the FBI was interested in the other people engaged in the business.
  • Smirnov’s ties to Russian spies go through at least one other intelligence service — probably Israel. But, at least for the last six months, he has been hanging out on the megayachts of Russian Oligarchs, almost certainly in Dubai, where, according to him, he was part of a plan to end the Ukraine war and elect Donald Trump.
  • One unanswered question that will be key to understanding how Smirnov attempted to frame Joe Biden is to identify how MAGAt US Attorney for Pittsburgh Scott Brady came to chase an otherwise unremarkable earlier Smirnov informant report mentioning Hunter Biden in passing. Given that Brady’s project catered to Rudy, any link involving Rudy as well would be significant.
  • But we may not discover that unless something dramatic happens, because David Weiss has no business overseeing this investigation, as he’s a direct witness to the involvement of Brady and Bill Barr. Indeed, as Hunter Biden attorney Abbe Lowell recently pointed out, Weiss has misrepresented his involvement in the Smirnov lead, going back to 2020, and by chasing this lead and extending the prosecution of Hunter Biden, he is effectively doing Russia’s bidding.

We already know of two ties between Trump world and Smirnov. His cousin, Linor Shefer, has ties to Trump through a Miami Real Estate developer.

Shefer, a 38-year-old Israeli-American, was a former contestant on the Israeli version of reality show Big Brother, and in 2014 won the Moscow beauty pageant ‘Miss Jewish Star’.

According to her LinkedIn page, she has been an ‘Inhouse Consultant’ for Dezer Development in Miami, Florida since 2022.

Dezer partnered with Trump’s organization to develop the $600 million Trump Grande Ocean Resort and Residences and $900 million Trump Towers. The company is run by Gil Dezer, and founded by his Israeli-American billionaire father Michael, who is a Trump donor.

And Smirnov has ties to Sam Kislin, who not only has long-standing ties to Rudy and Trump, but who came under some scrutiny during the 2019 impeachment.

Around 2021, on the beach at a private club in Boca Raton, Smirnov pitched Kislin on founding a company together that would market electric-car batteries and capture federal subsidies, Kislin said.

Smirnov told him he also could use his FBI ties to help him unfreeze more than $21 million in infrastructure bonds that belonged to Kislin but which Ukrainian authorities deemed had been issued illegally, embroiling Kislin in a corruption probe, Kislin said.

Kislin had for years been seeking to unfreeze the funds, traveling to Ukraine and meeting with officials there. His travel there coincided with efforts by Giuliani and his associates to push the Ukrainian government to investigate Biden, and in 2019, Kislin was subpoenaed by House impeachment investigators who were looking into those efforts. Kislin’s lawyer said he didn’t have relevant information, and he didn’t ultimately testify.

Smirnov set his fee for recovering Kislin’s $21 million at $1 million, according to Kislin, who said he paid Smirnov $224,000—partially as an advance and partially as an investment in the car-battery company, incorporated in Nevada in May 2021 as Quantum Force.

After a little over a year, Quantum Force dissolved and registered by the same name in a different state—this time without Smirnov listed in the corporate records.

When a solution to Kislin’s problem in Ukraine failed to materialize, Kislin said he deduced that Smirnov had taken him for a ride.

The Guardian points to a third — one through another of the sketchy businesses with which Smirnov worked, which includes a Middle East real estate tie:

Back in 2020, Smirnov was paid $600,000 by a company called Economic Transformation Technologies (ETT), prosecutors said. That same year, Smirnov began lying to the FBI about the Bidens, according to the indictment.

ETT’s CEO is the American Christopher Condon, who is also one of three shareholders in ETT Investment Holding Limited in London. Other shareholders in the UK include Pakistani American investor Shahal Khan and Farooq Arjomand, a former chairman and current board member of Damac Properties in Dubai who is also listed as an adviser on ETT’s American website.

[snip]

The exact business model of Texas-based ETT is murky. Its mission statement reads in part: “ETT set up the chess board to bring in top notch executives from those sectors to help implement its vision of love and social impact to improve the quality of human existence through the application of ‘new age’ technologies.”

The current CEO, Condon, is a California man who has been involved in several civil lawsuits, including a civil Rico case in 2010 that he won on appeal. Condon’s official biography says he is “a former professional tennis player, financial advisor, and currently is an entrepreneur focused on social-impact projects, public-private partnerships, and creating smart communities that benefit both individuals and governments”.

Condon, Arjomand and Khan registered ETT Investment Holding Limited in the UK on 6 March 2020. Khan, an investor who purchased the Plaza Hotel in 2018, and Arjomand have ties to Donald Trump through Trump associates and Damac, a major Middle East developer that has partnered with Trump for a decade. Arjomand, Khan and Condon owned 34%, 33% and 33% of ETT Investment Holding Limited respectively, according to UK business filings. No other information on the UK company is readily available.

The WSJ story — the same one that focused on Kislin — already laid out some sketchy aspects of Smirnov’s ties to ETT, and states that the relationship began in 2019.

Smirnov helped another company—Texas-based Economic Transformation Technologies, a software platform focused on “sovereign economic performance”—solicit investors starting around 2019, former associates said.

Smirnov was aware of concerns among investors and employees about some of the company’s practices, one of the associates said. The company was failing to pay some of its bills and several of its employees despite spending lavishly on travel and maintaining its exorbitant rent in the Dallas Cowboys headquarters, former associates and investors said.

Still, Smirnov brought in investors to meet with the company’s chairman, Christopher Condon, and other company executives—among them Kislin, who didn’t ultimately invest. Condon described Smirnov to associates as a “Russian friend of ours” who was skilled at fundraising, a former associate said.

It described that Condon knew of Smirnov’s FBI ties.

Smirnov’s FBI connections often came up in conversation as he hawked his services. Condon, the ETT chairman, also told people that Smirnov had “friends” in the FBI and described him as his protector who could help shield him from investigations, former associates said. Condon’s lawyer said Condon didn’t know the extent of Smirnov’s FBI involvement, and Condon denied describing Smirnov as a protector.

There are a lot more details of the Trump ties of Khan and Arjomand in the Guardian piece. What’s not included in there is the date in 2020 that ETT paid Smirnov. Particularly given Condon’s other sketchy ties, if that payment was anywhere close to August 2020, when we know Smirnov was given permission to engage in otherwise illegal activity, it may be his business ties were done with the knowledge and permission of the FBI.

Of course, the people with whom he engaged in OIA could well have a link to Scott Brady’s discovery of Smirnov. That’s why it is so problematic that Weiss, a witness, is leading this investigation.

In a status hearing for Hunter Biden yesterday (at which his gun trial was tentatively scheduled for the first two weeks of June), prosecutor Derek Hines suggested the Smirnov trial is still set to go starting on April 23, in spite of a recent CIPA filing. Also yesterday, Judge Otis Wright denied Smirnov’s bid to be released to San Francisco to receive glaucoma care.

Update: Fixed spelling of Shefer’s first name.

Update: CBS has a story describing a past complaint that Smirnov is a fraudster and a liar. Again, it’s hard to distinguish, without knowing more, whether for the FBI, that was the point.

Smirnov surfaced as a key secret witness in a sweeping racketeering case in California in 2015. In that case, the Justice Department brought charges against 33 defendants with ties to Armenian organized crime groups. Among the charges were money laundering, health care fraud and even a murder-for-hire.

Smirnov’s information contributed to the case against a married couple, Tigran Sarkisyan and his wife Hripsime Khachatryan, charged with conspiring with others to use fake identities to collect tax reimbursements from the federal government. The couple eventually pleaded guilty to a single count of racketeering in May 2017. In a 2018 sentencing memorandum, the couple’s lawyers flatly accused Smirnov of deceit.

“The [Confidential Human Source] was known to the United States as a liar and fraudster,” the sentencing brief states.

A footnote in the document states that the government was provided with the notes of their private investigator’s interview with a close associate of Smirnov who repeatedly called him a “liar.”

[snip]

Benincasa believes federal prosecutors realized they had a problem. According to Benincasa, the prosecutors had originally indicated they would be seeking a 10-year sentence as part of any plea deal. But after the lawsuit was filed, the government softened its position. Benincasa said he believes prosecutors wanted to avoid seeing Smirnov deposed in the civil case and possibly have his identity as an informant exposed. In the end prosecutors asked for 21 months, an unusually sharp reduction from the original 10 years that Benincasa says they were seeking. The judge ultimately sentenced the couple to 15 months.

Tucking In Alexander Smirnov: Abbe Lowell Accuses David Weiss of Doing Russia’s Bidding

I was working on a complex post about a comment David Weiss’ prosecutors made in their response to Hunter Biden’s selective and vindictive prosecution claim in Los Angeles — bizarrely suggesting that because right wing claims had been debunked by David Weiss’ further investigation of Alexander Smirnov, it was proof that they were operating in good faith (while still adhering to claims about Joe Biden’s role in this investigation that are thoroughly debunked by the common sense implication that Biden was targeted by this investigation).

Tucked into a reply brief in Delaware, the defendant claimed that the Special Counsel’s investigation and recent indictment in the case of United States v. Alexander Smirnov “infected this case.” D. Del Dkt. 89 at p. 6. Anticipating he may make this claim in his reply here, the government notes the following. Ironically, in his recent congressional testimony before two House Committees, the defendant cited the indictment brought by the Special Counsel in the case of U.S. v. Alexander Smirnov as evidence that the Special Counsel had undermined the investigation by Republicans. 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.

It was an utterly obnoxious comment, not least because prosecutors have not provided discovery relating to this — including, about David Weiss’ own role in the review of claims in 2020. These men enthusiastically chased Russian disinformation and now they’re trying to be snide about it.

I need not have bothered. In advance of a Delaware status hearing Wednesday, Abbe Lowell just filed what he fashions as a notice of additional authority — invoking the Scott Brady transcript — describing that even though David Weiss claimed to start investigating Alexander Smirnov’s allegation in July, he had already been briefed on Smirnov in 2020, but nevertheless chose to chase Russian disinformation again in July when House Republicans wailed loudly.

Although the Special Counsel claims that its investigation of Smirnov’s fantastical claims about Mr. Biden and President Biden receiving millions of dollars in bribes began in July 2023, Mr. Weiss and his team became aware of Smirnov’s claims years earlier. In October 2020, the FBI and then-U.S. Attorney Scott Brady (W.D.P.A.) passed Smirnov’s allegations to then-U.S. Attorney Weiss, and the Delaware U.S. Attorney’s Office was briefed on the claims contained in the now infamous FD-1023 alleging a fabricated foreign bribery scheme involving Mr. Biden and his father.1 Again, the FBI and DOJ had closed this investigation in August 2020 because they found Smirnov’s allegations baseless, and Mr. Weiss apparently agreed because he took no action based on them for over three years.

Then, in May 2023, it is uncontradicted that extremist Republicans in the House of Representatives pushed for the FBI (even threatening to hold its Director in contempt of Congress) to release the FD-1023 in an effort to publicly air these sensational allegations against Mr. Biden and President Biden, despite those allegations being baseless. Against its wishes, the FBI relented in July 2023. 2 With extremist Republicans and right-wing press outlets reviving interest in Smirnov’s claims, the Special Counsel apparently reopened its investigation days or weeks later. By the end of that month (July), the then-U.S. Attorney’s Office, instead of addressing with Mr. Biden’s counsel the specific questions this Court asked on July 26, instead abruptly backed away from a Plea Agreement that it signed and proposed to this Court and reneged on the Diversion Agreement. 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.

Effectively, Lowell argues, Weiss’ decision to reopen the case against Hunter amounts to doing Russia’s bidding.

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. At a subsequent detention hearing in Smirnov’s case, Mr. Wise explained that Smirnov “met with Russian intelligence agencies on multiple occasions, and the U.S. intelligence community has concluded that Russian intelligence interfered in the 2020 election and continues to interfere in our elections by spreading misinformation.” United States v. Smirnov, No. 2:24- MJ-00166-DJA (D. Nev. Feb. 20, 2024) (Ex. 1 at 20). 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.” Id. at 20–21, 33. Russia’s support of President Trump makes sense, as President Trump has praised the dictatorship of President Putin repeatedly and he continues to favor Russia over U.S. allies. See, e.g., Kate Sullivan, Trump Says He Would Encourage Russia To ‘Do Whatever The Hell They Want’ To Any NATO Country That Doesn’t Pay Enough, CNN (Feb. 11, 2024). The Special Counsel told the Nevada Court: “The effects of Smirnov’s false statements and fabricated information continue to be felt to this day.” Smirnov, DE 15 at 8 (Ex. 2 at 8); see also Govt’s Memo. in Support of App. for Review of Bail Order, United States v. Smirnov, No. 2:24-cr-00091-ODW, DE 11 (C.D. Cal. Feb. 21, 2024) (Ex. 3).

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.

Read the whole thing — along with other additional authority posted, a Third Circuit case holding that prosecutors have to deliver on their promises.

Whatever else these two filings do, they’ll force Weiss to explain his wildly conflicted role in this case.

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

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

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

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

It has to do with Roger Stone.

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

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

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

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

That’s one difference.

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

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

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

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

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

[snip]

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

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

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

Which brings us to Roger Stone.

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

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

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

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

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

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

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

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

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

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

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

But let’s take them in order.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

B. The Defendant Also Chose to Commit Serious Gun Crimes

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Timeline

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

March 5, 2019: The Stones establish Bertran Trust.

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

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

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

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

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

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

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

Hunter Biden Claims All Zhaos Look the Same to Joseph Ziegler

From the time Gary Shapley provided Congress obviously flawed summaries of WhatsApp texts, stripped of their identifiers, from an iCloud backup of Hunter Biden’s, I’ve argued their treatment reflects badly on the IRS agents involved.

When Abbe Lowell claimed, before Hunter was charged, that the IRS agents had gotten the identify of Hunter’s interlocutor wrong, I noted that the summaries, lacking identifiers, prevented what should be easy adjudication of this dispute.

The summary matters, a lot. That’s because Lowell claims that Shapley — or whoever did these summaries — misidentified the Hunter Biden interlocutor whose last name begins with Z.

In one excerpt that has now gotten a great deal of media attention, Mr. Biden is alleged to have been sitting next to his father on July 30, 2017, when he allegedly sent a WhatsApp message, urging the completion of some business transaction. See Shapley Tr. at 14. The inference is that the referenced message was being sent to an official of CEFC (China Energy) to forward a false narrative about the Bidens’ involvement in that company. The facts, which some media has now reported, are that President Biden and our client were not together that day, the company being referenced was not CEFC but Harvest Financial Group (with a person who also had the initial “Z”), and that no transaction actually occurred. More important, your own actions call into question the authenticity of that communication and your subsequent use of it. In short, the images you circulated online are complete fakes. Many media articles confirm that data purported to have come from Mr. Biden’s devices has been altered or manipulated. You, or someone else, did that again. All of the misstatements about this communication and your use of a false text are good examples of how providing one-sided, untested, and slanted information leads to improper conclusions. [my emphasis]

This is a remarkable claim, because — if true — it suggests the IRS was investigating Hunter Biden based on wildly incorrect assumptions about the identity of his interlocutors.

Abbe Lowell claims that the IRS agents who investigated his client for five years — the son of the President!!! — didn’t know to whom he was talking! I’ve heard a lot of outlandish claims from defense attorneys (though Lowell is far more credible than the grifters who defend a lot of January 6 defendants), But this is an utterly inflammatory claim.

Had Shapley used responsible summaries, rather than the unprofessional script he did use, it might be possible to figure out who is right, here, because then we could compare the actual number or email account used.

When Luke Broadwater tried to manufacture a partisan both-sides dispute out of this discrepancy, I noted the real conflict came between Republicans, some of whom said the Zhao in question was Henry, others who said it was Raymond.

The summary and the fabrications of the text and Smith’s use of the initials “HZ” matter because there’s a dispute between Republicans and their IRS source about the identity of the person involved.

Shapley said the texts involved Henry Zhao, consistent with Smith’s fabrication.

But in a later release, James Comer described the interlocutor as Raymond Zhao — which is consistent with the interjection in the summary (and other communications regarding this business deal).

On July 30, 2017, Hunter Biden sent a WhatsApp message to Raymond Zhao—a CEFC associate—regarding the $10 million capital payment:

As we’ll see, Broadwater predictably “fact checks” this as a dispute between Democrats and Republicans. It’s not. Before you get there, you first have to adjudicate a conflict between the guy who led the IRS investigation for more than two years, Gary Shapley, and James Comer. It’s a conflict sustained by the shoddiness of the underlying IRS work.

This is a story showing not only that James Comer and Jason Smith don’t know what they’re talking about, but are willing to lie and fabricate nevertheless, but even the IRS agents may not know what they’re talking about, and if they don’t, it’s because the standard of diligence on the investigation of Joe Biden’s son was such that they didn’t even include the identifier of the person to whom Hunter was talking, which would make it easy or at least possible to adjudicate this dispute.

In Wednesday’s hearing, after such time as they had received discovery on this material, Hunter Biden and Abbe Lowell provided a new explanation for the discrepancy: That the first text (but only the first text) was accidentally sent to Henry Zhao, and the follow-up texts — which were therefore necessarily unrelated — came from Raymond Zhao.

Q This is a giant text pack prepared by the IRS investigators, summarizing, and in many cases, quoting WhatsApp message.

Mr. Lowell. Do you have the underlying message?

[Redacted] We have this document. This is what we have.

Mr. Lowell. I want to point out on the record that is all known to you that we have great reservations about the accuracy and completeness of what two IRS agents who have decided to go on television and try to promote what they believe should happen to Mr. Biden as having made a complete record.

And when there have been records, they have not been complete?

And when they make summaries, they are often quoting from texts or communications, which appear to have been altered by those other than themselves.

So with all that, you can certainly ask your questions. But I do not accept the premise that what you’re about to ask him is either an authentic or authenticated or a complete document.

[Redacted]: Okay.

Mr. Lowell. With that in mind, let’s go.

[Redacted] Okay.

BY [Redacted]:

Q Just to set expectations here, I’m going to refer to three. Okay? Then we’ll be done with this document for now.

A Page 3?

Q I’m going to refer to three sort of topics —

A Okay.

Q — within this giant document, not 148. We’re not going to go through every page. I’m sort of managing your expectations here.

A Thank you.

Q I’d like you to turn to page 4, and it’s a message dated July 30th, 2017. It’s about halfway down the page and it begins, “WA message with SM.” And that’s the — that stands for Sportsman, and that’s what they called you, and Zhao. Have you identified the one that I’m referring to?

Mr. Lowell. It’s down the page. It’s the only one for the 30th?

[Redacted]. Correct.

Mr. Lowell. Okay. Yes.

BY [Redacted]:

Q And so the text, according to the IRS, the Federal investigators, say, “Z, please have the director call me, moment James or Tony or Jim. Have him call me tonight. I’m sitting here with my father, and we would like to understand why the commitment made has not been fulfilled.

“I’m very concerned that the chairman has either changed his mind or broken our deal without telling me or that he’s unaware of the promises and assurances that have been made have not been kept.

“Tell the director I would like to resolve this now before it gets out of hand, and now means tonight. And, Z, if I get a call or text from anyone involved in this other than you, Zhang or the chairman, I will make certain that between the man sitting next to me and every person he knows and my ability to forever hold a grudge that you will regret  not following my direction.

All too often people make mistakes — sorry.

“All too often people mistake kindness for weakness, and all too often I’m standing over the top of them, saying, I warned you.

“From this moment until whenever he reaches me. It’s 9:45 a.m. here and I assume 9:45 p.m. there. So his night is running out.”

Zhao responds, “Copy. I will call you on WhatsApp.”

You respond, “Okay, my friend. I’m sitting here, waiting for the call, with my father. I sure hope whatever it is are you doing is very, very, very important.”

Then Zhao says, “Hi, Hunter. Is it a good time to call now? Hi, Hunter, Director did not answer my call, but he got the message you just mentioned.”

A Yeah.

Q Do you have any recollection of sending these?

A No, but I’ve seen this and —

Mr. Lowell. Is there a question?

[Redacted]. Yes. Does he have a recollection of sending the message?

The Witness. And I do not, but I do know this. I have now seen it, which it’s been presented. I would say two things about this message.

Mr. Nadler. Can you speak up?

The Witness. I would say two things about this message. The first thing is this.

Is that the Zhao that this is sent to is not the Zhao that was connected to CEFC.

BY [Redacted]:

Q Okay.

A Which I think is the best indication of how out of my mind I was at this moment in time.

Again, I don’t — my addiction is not an excuse, but I can tell you this: I am more embarrassed of this text message, if it actually did come from me, than any text message I’ve ever sent.

The fact of the matter is, is that there’s no other text message that you have in which I say anything remotely to this. And I was out of my mind. I can also tell you this: My father was not sitting next to me. My father had no awareness. My father had no awareness of the business that I was doing. My father never benefited from any of the business that I was doing.

And so, I take full responsibility for being an absolute ass and idiot when I sent this message, if I did send this message.

Q Okay.

[Redacted]. When you say it wasn’t Zhao from CEFC, who —

Mr. Nadler. Would you speak up, please?

[Redacted]. Which Zhao are you referring to if it wasn’t from CEFC?

The Witness. The number that I believe it went to was to Henry Zhao. Zhao is a very common — it’s not a surname — surname in China. I mean, obviously, very common surname. And I, like an idiot, directed it towards Henry Zhao who had no involvement, who had no understanding or even remotely knew what the hell I was even Goddamn talking about. Excuse my language

BY [Redacted]:

Q And he seems to —

A No, no, no, no, no, the Zhao — it’s a different — you’re conflating now.

Q Okay.

A And this why this report from the IRS is absolutely wrong. They’re two different messages.

The Zhao that calls me is not related to the message that was sent. I speak to him the next day. They’re two completely different sets of messages. One goes a number because, I made the Goddamn — excuse my language again — because I made like an idiot, and I was drunk and probably high, sent a — this ridiculous message to a Zhao, to a Henry Zhao.

But then the next day, I speak to a Raymond Zhao, who has never received the message that Henry Zhao got. And so that’s why this report is very misleading in many ways.

Mr. Lowell. That’s exactly why I raised the point before you decided to ask questions. The IRS agents —

The Witness. I gave —

Mr. Lowell. — took two different times and two different messages and conflated them. That’s what he’s explaining.

The Witness. And I can — and we can show you that.

And I also could show you that on that message, there was never a Chinese flag and a picture of it, as I think was shown in the Oversight Committee before. [my emphasis]

If I understand it correct, Henry Zhao was involved in an earlier business deal, Raymond Zhao is the one with ties to CEFC.

Here’s how Shapley presented the text in his first deposition.

And here’s the exhibit on which House Republicans are likely relying.

There are still a number of inconsistencies with this story, but it really doesn’t make sense to address them without full context (which Hunter presumably has).

In any case, the text string is still somewhat damning to Hunter; his conversations with CEFC continued the same thread, cutting Tony Bobulinski and the others out of the deal.

But I will say this: I already have questions about where WhatsApp texts got saved, not least because at the time, having access to one WhatsApp instance would give you access to the rest of it.

All the more so given that, if we can trust the warrant and Joseph Ziegler’s description of the source of these texts (Apple Backup 3, which the warrant describes as an Apple 6S backup), the timing is curious. Hunter used an iPhone 6S much earlier than 2017, and he initiated a new one on February 9, 2019, just as his devices were packed up for delivery to John Paul Mac Isaac.

Whatever the explanation, it seems that rather than work through a discrepancy, or just leaving out texts that couldn’t be explained, the IRS just blew through inconsistencies.

Like His Father, Hunter Biden Got Forgetful about Details Pertaining to Beau’s Illness

Predictably, after Republican staffers asked the expected questions in Wednesday’s Hunter Biden deposition (and Democratic staffers caught their colleagues leaving out pertinent pages, twice), individual members of Congress launched their gotcha questions, with Matt Gaetz trying to base bribery allegations in the fact that Hunter paid a shared cell phone bill 14 years ago.

There was one interesting gotcha question, though — because it demonstrated how Biden men peg events to things that happened with Beau’s cancer, and as a result get fuzzy about the timeline.

To set up a question about a business deal with a hedgie named Jonathan Li, a staffer asked Hunter to read a passage from his book describing a trip to China where then-Vice President Biden briefly met Li. While reading, Hunter observed that he might have the date of the trip wrong.

Q You can read the next full paragraph.

A Okay. “In 2013 –” I think it was 2014, but I’m not sure, because — I think this is a mistake because I’d learned of Beau’s tumor just months before, it would be 2014, and I went on this trip, I believe, it was in 2014.

“In 2014, Dad asked –” it says, in 2013, but it should say 2014 — “Dad asked my then teenage daughter, Finnegan, to join him on Air Force Two to Japan and then onto Beijing, where he was meeting with President Xi Jinping. Dad often asked his grandkids to accompany him on overseas trips. It was his chance to catch up. I jumped on the plane from Japan to China to spend time with them both. While we were in Beijing, Dad met with one of Devon’s Chinese partners, Jonathan Li, in the lobby of the American delegation’s hotel, just long enough to say hello and shake hands. I was meeting with Li as a courtesy call while I was in the country; the business deal had been signed more than a week earlier. Li and I then headed off for a cup of coffee.”

That was in the first hour.

Two hours later, after Andy Biggs attempted to claim that Devon Archer had testified that Hunter had called his father with Mykola Zlochevsky (Archer testified that he didn’t witness any call), Biggs tried to make a major deal about Hunter’s earlier uncertainty about this date.

Mr. Biggs. Right.

So you also testified that the book — that the book was wrong, your book was wrong, it’s printed with the wrong date. You testified that —

Mr. Lowell. No, no. Actually, it was right.

The Witness. Oh, it was right?

Mr. Biggs. But that’s not what he testified to, Mr. Lowell.

Mr. Lowell. He said he wasn’t sure.

The Witness. I wasn’t sure. I thought because —

Mr. Biggs. No, no. Well, we’ll have the transcript to look back. I mean, you like to rely on the transcript.

Mr. Lowell. Well, luckily we’re still here, so let’s ask the question: When is the date that is in his book in which he’s talking about? It’s either 2013 or 2014.

Is that the one you’re talking about?

Mr. Biggs. Yeah.

Mr. Lowell. Let’s go back to the book.

The Witness. Yeah.

Mr. Lowell. Can we go back to that exhibit?

The Witness. But regardless is this: is that, I’m sorry I missed, in a 270-page book, a typo of — if it is such a typo. I have no idea.

Mr. Lowell. What is the 2013 date?

Mr. Biggs. Unbelievable.

The Witness. How is it unbelievable, Mr. Biggs? I really don’t understand.

Mr. Biggs. Well, I’m not surprised you don’t understand, so —

The Witness. Why are you not surprised? I really — is that —

Mr. Biggs. So here we go. Do you have the book?

Mr. Lowell. Yeah, we do.

Mr. Biggs. Okay. What’s the right year?

Mr. Lowell. “In 2013, Dad asked my then-teenage daughter, Finnegan, to join him on Air Force Two to Japan” —

The Witness. So this isn’t even — we’re not even talking about the same time.

This is the — this is the transcript. I thought that that 2013 — I was confused. I thought that it happened in —

Mr. Biggs. So you’re —

The Witness. — 2014. But —

Mr. Biggs. I don’t want to interrupt you, but I’m going to. You are confused — you were confused earlier today —

The Witness. About your —

Mr. Biggs. — when you testified?

The Witness. By your questioning. You’re telling me — you were just talking about a board meeting with Burisma in Dubai.

Mr. Biggs. Yeah, and then we moved on to this.

The Witness. Oh. We hadn’t even moved on to it yet, though. What’s —

Mr. Biggs. Yeah, we had.

The Witness. — the question?

Mr. Biggs. You said this morning — I want to make this as clear as I possibly can.

This morning, you testified, my understanding, that your book was in error. In fact, I wrote it down when you said that, that the date was in error —

The Witness. No —

Mr. Biggs. — in your published book. Is that — was that wrong?

The Witness. If we — we will, I’m sure, have the transcript in 24 hours. But to clarify, I will make absolutely clear, we were doing questioning here. We were asking other questions related to other dates. There have been many, many dates thrown around today. I think probably a thousand times someone has asked me about a date, time, this, this, and the other.

Mr. Biggs. This was —

The Witness. When I was reading this, it said in 2013, and I said, “Is that right?”

Mr. Biggs. Okay.

The Witness. “I’m not sure if that’s right. I thought the trip to China occurred in 2014.”

Mr. Biggs. All right.

The Witness. I’m still not certain of exactly the date that it happened. But it’s not a —

Mr. Biggs. You don’t view it as materiality. I get it.

The Witness. Whether it happened in 2013 or 2014?

Mr. Biggs. So I want to — I want to ask you —

The Witness. Do you view that as materiality?

Mr. Lowell. I’m sorry. Now we have to tell you that you’re over your hour, and  I’ve given you 2 or 3 more minutes. And I’m just — according to Ms. Greene, rules matter.

Mr. Biggs. Thank you.

Mr. Lowell. We’re done.

They weren’t done, by the way. Biggs moved on to attempting to claim Hunter had vouched for Tony Bobulinski’s pictures of Blackberry messages, even though Abbe Lowell had specifically said they did not vouch for those messages. There was a lot of claiming that up was down from the members of Congress.

But the exchange about dates is instructive. Biggs thought he had scored a great big gotcha. He was (and probably will) attempt to use Hunter’s uncertainty about the date of the trip to China — uncertainty that stemmed from Hunter trying to map it onto Beau’s illness — to claim that Hunter’s certainty that he did not call his father on Zlochevsky’s behalf is unreliable because he couldn’t remember the date of the trip to China.

Biggs was attempting to use Hunter’s uncertainty about something that’s not material as a way to claim his certainty about something material cannot be trusted.

It looks pretty ridiculous on paper, doesn’t it?

But it sounds remarkably similar to what Robert Hur did with Hunter’s father — using Joe Biden’s uncertainty about the timing of Beau’s death to suggest Joe’s certainty that a reference to a 40-page handwritten memo could not be trusted, and that instead one must infer something more nefarious.

Of course, when Hur pulled this ploy, he concluded that Joe’s uncertainty about the date reflected not the stress of dealing with October 7 nor the muddiness created by pegging life events to grief, but that Joe is an old geezer who should not be President.

It turns out that both Biden men — 81-year old Joe and 54-year old Hunter — got similarly uncertain when they tied life events to Beau’s illness in a deposition.

How Derek Hines Fooled Ken Dilanian into Making False Claims about the Hunter Biden Laptop

When I first read this passage in mid-January, it led me to suspect prosecutors in the Hunter Biden case were hiding real problems with the provenance of their digital data.

In August 2019, IRS and FBI investigators obtained a search warrant for tax violations for the defendant’s Apple iCloud account. 2 In response to that warrant, in September 2019, Apple produced backups of data from various of the defendant’s electronic devices that he had backed up to his iCloud account. 3 Investigators also later came into possession of the defendant’s Apple MacBook Pro, which he had left at a computer store. A search warrant was also obtained for his laptop and the results of the search were largely duplicative of information investigators had already obtained from Apple. 4 Law enforcement also later obtained a search warrant to search the defendant’s electronic evidence for evidence of federal firearms violations and to seize such data. 5

2 District of Delaware Case No. 19-234M and a follow up search warrant, District of Delaware Case Number 20-165M.

3 The electronic evidence referenced in this section was produced to the defendant in discovery in advance of the deadline to file motions.

4 District of Delaware Case No. 19-309M.

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

Not so Ken Dilanian.

He read the same passage over five weeks and abundant new disclosures later, and claimed that rather than raise questions, it instead amounted to confirmation that prosecutors had authenticated material from the laptop.

Material from the laptop became evidence in the criminal investigation of Hunter Biden, which ultimately resulted in a pair of indictments accusing him of tax and gun crimes. He has pleaded not guilty. A recent court filing by the lead prosecutor in the case, special counsel David Weiss, says investigators authenticated the laptop material — and the fact that a computer had been left in a store.

He also claimed that this laptop evidence could have resulted in a gun indictment, when — as I confirmed as I was trying to chase down my suspicions — prosecutors didn’t get a warrant to search the laptop for gun crimes until after the gun indictment. If they used the laptop to get that gun crime indictment, they probably conducted an unlawful search.

Because people are quoting Dilanian’s claims as if they accurately report what we know about the laptop, I’d like to trace all the reasons why Dilanian should never have made either claim.

Let’s start with the reasons that passage raised suspicions in the first place.

I was suspicious partly because of the way Derek Hines used a showy claim about cocaine residue to distract from the issue he was litigating — whether prosecutors only decided to charge gun crimes in response to GOP pressure. Worse still, Hines hid the most important detail about that cocaine residue discovery, the date a lab tested for it, which would reveal whether that showy claim instead hurt his argument. In NBC’s case, three reporters suggested the late discovery of cocaine residue showed that prosecutors had obtained new evidence that led to indictment (though to NBC’s credit, they at least didn’t make the coke-in-gun their headline). Subsequent filings have revealed that the lab test was October 2023, after the indictment, and so proof instead that prosecutors didn’t seek evidence until after they charged. The showy residue claim actually supports Hunter’s side of this argument, not Weiss’: it suggests prosecutors never took basic investigative steps to support gun charges until Jim Jordan demanded it.

I was also suspicious because Hines had engaged in so much obvious prevarication in the same filing. He played with the timeline to suggest that evidence available two years before the indictment — Hunter’s book — was newly obtained. He selectively cited documentation about what led up to the plea deal: ignoring proof that David Weiss was personally involved, on June 6, in crafting language that protected against further charges; offering no contest to Chris Clark’s claim that on June 19, Weiss’ First AUSA assured Clark there was no ongoing investigation. Hines lumped Hunter’s lie on a gun form in with far more serious straw purchases in order to claim there were aggravating circumstances that merited charging (a detail that still doesn’t address why Weiss reneged on the plea deal). Hines outright lied about how much David Weiss had ratcheted up the potential sentence with the new charges.

No one should have uncritically accepted the language in this passage, because so much of the filing was obviously deceptive.

I was suspicious, too, because Hines’ claim that evidence obtained from the laptop was “largely duplicative” admits that it was not entirely duplicative. His choice of language made it clear there were things on the laptop that were not in the iCloud.

And he did so in a paragraph that tried to obscure how the provenance of the laptop affects the provenance of his other evidence. Notably, the structure of the passage misrepresented the temporal progression — a temporal progression that anyone who had covered Gary Shapley’s testimony should know. The body of the paragraph suggested that investigators got a warrant for Apple and only then accessed the laptop. The body of the paragraph provided no hint about when prosecutors obtained a warrant to search already obtained materials for gun crimes. The footnotes tell a different story. Hines hid in footnote 2 a follow-up warrant for backups of individual devices with a docket number, dating to 2020, showing that that follow-up warrant post-dated FBI’s receipt of the laptop (again, which was already clear from Gary Shapley’s testimony), and therefore may be poisoned fruit of the laptop. More shockingly, Hines hid the 2023 date of the gun crimes warrant in footnote 5. Those footnotes are what led me to ask more questions and ultimately to liberate the warrants in question.

When Dilanian quoted that passage as if it were reliable, he omitted the existence of those footnotes, as well as the reference to the belated warrant for gun crimes that explained why the laptop couldn’t have “resulted” in the gun indictment without a likely Fourth Amendment violation.

“In August 2019, IRS and FBI investigators obtained a search warrant for tax violations for the defendant [Hunter Biden]’s Apple iCloud account,” [omitted footnote 2] the filing said. “In response to that warrant, in September 2019, Apple produced backups of data from various of the defendant’s electronic devices that he had backed up to his iCloud account. [omitted footnote 3] Investigators also later came into possession of the defendant’s Apple MacBook Pro, which he had left at a computer store. A search warrant was also obtained for his laptop and the results of the search were largely duplicative of information investigators had already obtained from Apple.” [omitted footnote 4 and admission they did not originally get a warrant for gun crimes]

Even in January, that response filing should have led reporters to note that David Weiss didn’t even seek basic evidence needed to prove the gun case until after he charged it.

But much has happened since to raise further questions about the laptop, including:

  • January 17: I write Weiss’ spox asking, “Can you correct me on the date of that warrant, please?” because I thought there was no way it was really December 2023. He declined to further comment, which made me suspect maybe it was really December 2023.
  • January 22: I asked Judge Noreika to unseal the dockets. She did!
  • January 30: Those dockets confirmed Weiss did not seek a warrant to search Hunter’s Apple data for evidence of gun crimes until 81 days after the indictment; the warrant return also discloses that the FBI was still searching Hunter’s Apple data on January 16 when Hines first publicly disclosed it and claimed that the laptop was largely duplicative of what was in the iCloud.
  • January 30: Abbe Lowell announced he plans to file a motion to suppress.
  • January 30: Prosecutors had not provided material from the laptop with Bates stamp or in e-discovery format; they also had not provided expert reports on the laptop known (from Shapley’s testimony, among other places) to exist.
  • February 13: Almost 40 months after acknowledging that the FBI had never validated the laptop to check when files were added to it, they admitted that they still have no index of the laptop. They also claim they were seizing information relating to gun crimes under the plain view doctrine for four years.
  • February 13: The FBI understands the laptop so poorly that they presented a picture of sawdust from Keith Ablow that probably should have been treated as privileged and claimed it was a picture Hunter took of his own cocaine. (There’s likely another picture that Hines misattributed, too.)
  • February 20: The same day Hunter rejected Weiss’ demand for quick guilty pleas to felony charges, August 29, prosecutors told Abbe Lowell — still three months before they obtained a gun crime warrant for either Hunter’s iCloud or the laptop — they had “independent sources” for anything on the laptop.
  • February 20: By describing that key texts sent between Hallie and Hunter Biden in October 2018 were not found in the iCloud content, prosecutors were actually describing that they did not have “independent sources” for their most probative evidence (or of the picture of a picture of a table saw and sawdust they want to claim is cocaine).

Let me make this easy for NBC, because they seem to misunderstand this.

Over 1,500 days after receiving the laptop, the FBI has not done the things it would need to do to validate the laptop. They don’t have an index of what they have and they don’t know how all the embedded back-ups relate to one another. Without that, they cannot make representations that the laptop was not tampered with. Indeed, they’re making laughably false claims about what they have found uniquely on the laptop, a testament that they don’t have the most basic understanding about the laptop.

Additionally, Hines’ description of the source for the texts between Hallie and Hunter Biden makes it highly likely they came from a device backup that was protected by a password when the FBI got the laptop. Accessing that content without a follow-up warrant — which they did before they got the 2020 warrants that may rely on it — may be a Fourth Amendment violation under Riley. And particularly given that Hunter had just lost two phones in the days before such texts would have been sent, it raises real questions about both their provenance and the compilation of the laptop itself.

Since Derek Hines made dubious claims on January 16 that the laptop was “largely duplicative” of material found in Hunter Biden’s iCloud, we’ve since learned one reason he was so squirrelly when he made that claim: his most important evidence for the gun crime doesn’t appear to be duplicated in Hunter’s iCloud. And unless the FBI conducted an unlawful search of Hunter’s digital evidence — or unless they indicted based on what they had seen in Murdoch publications — they did not learn that until months after they charged the President’s son. And they didn’t learn that because four years after obtaining the laptop, the FBI has still never taken basic steps to understand what is on it.


After I reviewed the passage Dilanian quoted, I realized that it is even more misleading than I had previously understood. The full passage is below, with annotations. 

In August 2019, IRS and FBI investigators obtained a search warrant for tax violations for the defendant’s Apple iCloud account. 2 In response to that warrant, in September 2019, Apple produced backups of data from various of the defendant’s electronic devices that he had backed up to his iCloud account. [this obscures what happened: Apple sent the full content of Hunter’s iCloud account, including the backups, but DOJ obtained new warrants — possibly relying on the laptop — to obtain those backups in 2020] 3 Investigators also later came into possession [this “came into possession” will look comical after we see a motion to suppress, not least because by the time FBI obtained it, they had already told John Paul Mac Isaac’s father he may have had it illegally] of the defendant’s Apple MacBook Pro, which he had left at a computer store. [as I’ve shown, the only proof that Hunter left the laptop would be easily faked by anyone in possession of the laptop — and when they checked Hunter’s iCloud data, they should have realized there were too many devices associated with it for all to be legitimately his] A search warrant was also obtained for his laptop and the results of the search were largely [as subsequent filings made clear, Weiss’ most important evidence was not duplicated in Hunter’s iCloud] duplicative of information investigators had already obtained from Apple. 4 Law enforcement also later [by “later,” Hines means, they didn’t get a warrant until 81 days after indicting and were still searching the digital data] obtained a search warrant to search the defendant’s electronic evidence for evidence of federal firearms violations and to seize such data. 5

2 District of Delaware Case No. 19-234M [August 29, 2019: Original iCloud warrantwarrant return] and a follow up search warrant, District of Delaware Case Number 20-165M. [July 10, 2020 iCloud warrantwarrant return]

3 The electronic evidence referenced in this section was produced to the defendant in discovery in advance of the deadline to file motions.

4 District of Delaware Case No. 19-309M. [December 13, 2019: Original laptop warrantwarrant return]

5 District of Delaware Case No. 23-507M. [December 4, 2023: post-indictment warrantwarrant. return (less attachments) attachments AB]

The searches revealed incriminating evidence, including evidence of the defendant’s addiction to controlled substances and his possession of the firearm, such as:

– Prior to October 12, 2018 (the date of the gun purchase), the defendant took photos of crack cocaine and drug paraphernalia on his phone. [as proof of this, Hines presented a single photo of someone weighing cocaine without proof Hunter took it (though he probably did)]

– Also prior to his gun purchase, the defendant routinely sent messages about purchasing drugs. [as shown in the table below, Hines provides three examples, one of which was conducted on an “unknown” phone, the most recent of which was in July 2018]

– On October 13, 2018, and October 14, 2018 (the day after and two days after he purchased the firearm), the defendant messaged his girlfriend about meeting a drug dealer and smoking crack. For example, on October 13, 2018, the defendant messaged her and stated, “. . . I’m now off MD Av behind blue rocks stadium waiting for a dealer named Mookie.” The next day, the defendant messaged her and stated, “I was sleeping on a car smoking crack on 4th street and Rodney.” [this is from content that Hines seems to concede only exists on the laptop and was sent during a period when Hunter was still replacing lost phones]

– On October 23, 2018 (the day his then-girlfriend discarded his firearm), the defendant messaged his girlfriend and asked, “Did you take that from me [girlfriend]?” Later that evening, after his interactions with law enforcement, he messaged her about the “[t]he fucking FBI” and asked her, “so what’s my fault here [girlfriend] that you speak of. Owning a gun that’s in a locked car hidden on another property? You say I invade your privacy. What more can I do than come back to you to try again. And you do this???? Who in their right mind would trust you would help me get sober.” In response, the girlfriend stated “I’m sorry, I just want you safe. That was not safe. And it was open unlocked and windows down and the kids search your car. You have lost your mind hunter. I’m sorry I handled it poorly today but you are in huge denial about yourself and about that reality that I just want you safe. You run away like a child and blame me for your shit . . .” [this is still content that may only be available on the laptop and therefore unreliable or inadmissible]

– After the firearm was taken from him and recovered by police, the defendant continued to send messages to various people about his use of drugs, including telling his girlfriend that he is an “addict” on November 8, 2018, and on November 21, 2018, telling Person 1, “. . . I’m a fucking better man than any man you know whether I’m smoking crack or not.” He also continued to send messages about purchasing drugs. He sent a message to his girlfriend on November 29, 2018, stating, in relevant part, “I DONT BLAME MY ADDICTION ON YOU . . .” and another message to Person 2 on December 18, 2018, acknowledging that he is “an addict.” On December 28, 2018, hemessaged Person 2 stating, “I’ll fuxking [sic] get sober when I want to get fucking sober.” [this content does exist in Hunter’s iCloud, but several things make it suspect: he was texting on at least one other device at the time — though that’s a device that appears to only be available on the laptop — and (as I describe here) this particular device may be one that has suspect provenance going back to 2016]

– During November and December 2018, the defendant took multiple photographs of videos apparent cocaine, crack cocaine, and drug paraphernalia. [Hines presented three photos to back this claim: a timer in a picture of a presumed sex worker, a picture Keith Ablow took of a picture of sawdust, and a picture that may have come from Hallie — to the extent that it represented drug use — could not be tied to Hunter as opposed to Hallie and was very dated in any case] These episodes of persistent drug usage, documented by the defendant, in the immediate time frame before, during, and after his possession of the gun were evidence that he lied during the background check and unlawfully possessed the gun in October 2018.

 

 

Lesley Wolf Vindicated by Alexander Smirnov Indictment

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

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

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

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

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

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

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

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

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

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

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

Q Uh-huh?

A — could have some ammunition.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A I don’t remember that, no.

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

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

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

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

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

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

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

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

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

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

Mr. Castor. Unwilling to take meetings?

Ms. Kramer. Generally?

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

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

BY MR. CASTOR:

Q Sure, sure.

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

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

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

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

A I mean, I’ve read his testimony.

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

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

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

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

Chairman Jordan. Okay, sure. I apologize.

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

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

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

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

[snip]

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

Wolf is being coy here.

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

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

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

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

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

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

Navel-Gazing: The Ethics Problem Caused by Merrick Garland’s Brad Weinsheimer Solution

I want to talk about DOJ’s career Associate Deputy Attorney General position. I think the way Merrick Garland is using that position to supervise Special Counsel investigations has contributed to the ethical lapses we’re seeing from them.

The current occupant of that role, Bradley Weinsheimer, has garnered attention in recent weeks for his role in some letters exchanged between lawyers for President Biden and DOJ. Between Politico, WaPo, and NYT stories on the letters, they describe the following exchanges:

There’s no report that anyone responded to any of Biden’s 2023 letters. Hur published the letter from Ricard Sauber and Bob Bauer letter in the report, without addressing most of his inappropriate statements. But, after Garland apparently referred the February 7 letter from Ed Siskel and Bauer to Weinsheimer, the ADAG responded to that, while referencing the letter to Hur.

Brad Weinsheimer blows off half Biden’s complaints

After describing that he “serve[s] as [DOJ’s] senior career official,” Weinsheimer proceeded to mischaracterize both the February 5 and the February 7 letters by claiming the complaints were “substantially similar.”

The objections you raise in your letter to the Attorney General are substantially similar to the objections you raised in your February 5, 2024 letter to Special Counsel Hur. In both letters, you contend that the report contains statements that violate long-standing Department policy.

That’s incorrect. They’re not substantially similar. The February 5 letter included the following:

  • Bullets one and two (about two pages total) complaining about prejudicial comments
  • Three bullets (three through five) about misrepresentations Hur made to substantiate his Afghanistan narrative, none of which Hur addressed in the report
  • Bullet six discussing the awareness of Biden’s staffers of his diaries
  • Bullet seven that included six other complaints, the last three of which Hur fixed, the first three of which — including the make-believe comment about an attorney-client privileged conversation — he left in

One of those items in bullet seven had to do with Hur’s claim, in the first draft, to have reviewed all the classified information in Reagan’s diaries; he added the word “some” in the final to make it accurate.

The letter to Garland addressed two topics, the second of which was Hur’s use of prejudicial language. Before it addressed Hur’s old geezer comments, though, the letter complained that Hur misrepresented DOJ’s past treatment of presidential and vice presidential diaries, a combination of bullet two, bullet six, and the Reagan diary complaint from the February 5 letter.

Rather than deal with the treatment of diaries, Weinsheimer appears to have just lumped the first part (bullet two in the original) in with the old geezer comments, resulting in Weinsheimer’s mischaracterization of the diaries complaint: Here’s how he described the two complaints.

In particular, you first highlight brief language in the report discussing President Biden’s use of the term “totally irresponsible” to refer to former President Trump’s handling of classified information. Second, you object to the “multiple denigrating statements about President Biden’s memory.”

And based on that mischaracterization, even while claiming to have “carefully considered your arguments,” Weinsheimer issued DOJ’s conclusion that Hur acted within DOJ guidelines.

Having carefully considered your arguments, the Department concludes that the report as submitted to the Attorney General, and its release, are consistent with legal requirements and Department policy. The report will be provided to Congress and released publicly, consistent with Department practice and the Attorney General’s commitment to transparency.

With that characterization, Weinsheimer blew off a number of requested corrections in the letter to Hur — such as the one that Hur invented a hypothetical attorney-client conversation to make the discovery of a box with classified documents in the Wilmington garage more suspicious — and also blew off most of the first half of the letter to Garland, addressing the past treatment of diaries.

The problematic function of the senior Associate Deputy Attorney General

I’m not so much interested in litigating Weinsheimer’s answer: that it was cool for Hur to use prejudicial language, including things like his invented attorney-client conversation. I’m interested in the fact that he claimed to address both the letter to Hur and the letter to Garland and, based on that claim, issued a definitive policy judgment. I’m interested in the function Weinsheimer is playing, because I think it is one thing contributing to the tolerance for ethical lapses among Special Counsels under Merrick Garland.

Politico describes Weinsheimer’s role in making that decision this way:

The next day, Feb. 8, Weinsheimer, the associate deputy attorney general, responded to the letter on behalf of the department. Weinsheimer, a civil servant who has worked at the department for decades, oversees the department’s most politically sensitive matters, including questions on ethics. He has fielded complaints from Hunter Biden’s lawyers about special counsel David Weiss and from Trump’s lawyers about special counsel Jack Smith.

That is, Politico treats Weinsheimer’s role as the traditional role of the career Associate Deputy Attorney General, the guy (if I’m not mistaken, it has always been a guy) one appeals to for ethical review.

That understanding of the role goes back to a guy named David Margolis, who is treated as a saint among DOJers. For 23 years, Margolis served as the guy who’d make the hard decisions — such as what to do with the prosecutors who botched the Ted Stevens prosecution or, worse yet, John Yoo’s permission to torture.

In 1993, he was named associate deputy attorney general. He worked for the deputy attorney general, essentially the chief operating officer of the department. “We would give all the hairballs to [Margolis], all the hardest, most difficult problems, the most politically controversial,” recalled FBI Director James B. Comey, a former deputy attorney general.

Vince Foster’s suicide. Ted Stevens’s botched prosecution for public corruption. The leak of Valerie Plame’s identity. The firings of U.S. attorneys. Margolis was involved — in some way — in them all.

Undoubtedly the most controversial issue he has dealt with came in the early years of the Obama administration. The department’s internal watchdog, the Office of Professional Responsibility, had determined that former Office of Legal Counsel lawyers John Yoo and Jay Bybee had engaged in professional misconduct in writing two memos that gave legal sanction to the use of torture tactics such as waterboarding, as well as wall slamming, extended sleep deprivation and other extreme techniques used by the CIA to interrogate terrorist detainees. Margolis had to decide whether to endorse the OPR’s recommendation that the two lawyers from the Bush administration, who by then had left government, be disciplined.

That was the decision “I agonized over most,” he said. “I knew it would be controversial whichever way it came down.”

In a memo written in January 2010, he conceded that “Yoo’s loyalty to his own ideology and convictions clouded his view” of his professional obligation. But, he concluded, Yoo did not “knowingly” provide inaccurate legal advice and he overturned the OPR recommendation.

That set off a firestorm of criticism from Democratic lawmakers, civil liberties advocates and human rights activists.

“I don’t want to accuse him of bad faith,” said David Luban, a Georgetown University Law Center professor of law and philosophy. “But I will accuse him of bad reasoning.”

But as bmaz wrote on Margolis’ passing, often as not decisions advertised as an ethical decision seemed instead to protect the institution of DOJ.

Sally Yates is spot on when she says Margolis’ “dedication to our [DOJ] mission knew no bounds”. That is not necessarily in a good way though, and Margolis was far from the the “personification of all that is good about the Department of Justice”. Mr. Margolis may have been such internally at the Department, but it is far less than clear he is really all that to the public and citizenry the Department is designed to serve. Indeed there is a pretty long record Mr. Margolis consistently not only frustrated accountability for DOJ malfeasance, but was the hand which guided and ingrained the craven protection of any and all DOJ attorneys for accountability, no matter how deeply they defiled the arc of justice.

After Margolis passed, a guy named Scott Schools played that role for a short period spanning the Obama and Trump years. In such role, in my opinion, he protected the Deputy Attorney General’s office more than DOJ. As one example, Schools was the guy who helped push Andrew McCabe out the door to serve Donald Trump’s whims.

Which is when, in 2018, Jeff Sessions put Weinsheimer, who had played a NatSec role prior to that, in the post.

For the purposes of this post, I’m not really interested in whether Weinsheimer is a good guy or not. There are journalists who are better placed than I am to go chase that down.

I want to talk about how his role on Special Counsels likely ensures an ethical conflict — and all that’s before you consider the extremely likely possibility that he signed off on the McCabe settlement and then was involved in Hur’s selection and supervision, which would be a separate conflict of his own.

Weinsheimer is the supervisor of David Weiss

I don’t dispute Politico’s characterization of how the ADAG position normally works. As laid out in the Margolis bio, the position is supposed to make the difficult decisions and then give such decisions, arguably meant to protect DOJ, the appearance of ethical gravitas. One is supposed to be able to appeal to the ADAG position, in case of ethical problems.

But that depends on the ADAG being outside of potentially unethical decisions in the first place. You can’t review decisions if you were part of them.

At least in the case of David Weiss, Weinsheimer can’t play that role because he is, for all intents and purposes, Weiss’ supervisor — apparently on all matters, not just the Hunter Biden investigation.

In his November testimony to Congress, Weiss described that he has never spoken to his nominal boss, Lisa Monaco, or the person via whom he would normally communicate to his boss, the current Principal Associate Deputy Attorney General, Marshall Miller (as noted below, he described communicating via Miller’s predecessor until 2022, John Carlin).

Q When you have interactions with Justice Department Headquarters or Main Justice, how does that ordinarily happen? Who is your primary point of contact?

A I don’t know that there is an ordinary. I don’t know that I would designate anyone in particular.

Q Under the reporting structure, though, you report up through the Deputy Attorney General. Is that correct?

A That’s correct.

Q And how often do you talk with Ms. Monaco?

A I have never spoken with Ms. Monaco.

Q You’ve never spoken to her?

A Never.

Q Okay. And do you have communications with someone else in the office? Maybe the PADAG?

A I have — my point of contact for the last year, year and a half has been Associate Deputy Attorney General Weinsheimer.

Q Okay. So you’re not in contact on a regular basis with the PADAG, Mr. Miller?

A I am not.

Q Have you ever had communications with him?

A I have not.

Q Okay. So you’ve never had any communications with Marshall Miller or Lisa Monaco?

A I have not.

By his description, he speaks to Weinsheimer regularly, about once a month, and those communications primarily pertain to the President’s son.

Q Okay. And how often do you have communications with Mr. Weinsheimer?

A It varies depending upon what’s going on. But I would say we’ve spoken, before August of 2023, approximately once a month, sometimes more frequently.

Q And was it related to the Hunter Biden case, or was it related to your ordinary duties?

A Generally, it was related to the Hunter Biden case investigation.

That same pace has continued during the period since he had been named Special Counsel.

Chairman Jordan. Have you kept up the rhythm? You said earlier today that you had monthly contacts with the key people at the Justice Department. Have you kept up that same protocol? Has it increased or decreased as Special Counsel?

Mr. Weiss. I guess it’s been, I guess, 3 months. I don’t know that there is much of a practice or that I could say, you know, circumstances. You know, I’ve had several conversations in the last 3 months with Mr. Weinsheimer. I can say that.

Chairman Jordan. So it’s picked up?

Mr. Weiss. It’s — I’ve had probably — yes, several conversations. Whether that will continue or it was unique to the initial stages of the project, I really can’t speak to.

When Weinsheimer reached out to the then-PADAG, Carlin — again, the normal person he would report to — Carlin involved Weinsheimer in all discussions about how to get Special Attorney (not Special Counsel) status to charge the case in a different District with Weiss.

Q Okay. And when did Mr. Weinsheimer first start having communications with you about the Hunter Biden case?

A I think we first spoke about the case in the spring of 2022.

Q And, to the extent you can tell us, what were the nature of those discussions?

A In 2022?

Q Yeah.

A Actually, more accurately, February of 2022, I think, was the first time we spoke. And I would have reached out because we were looking to bring certain portions of our investigation to either D.C. or L.A. At that time, D.C.

Q Okay. Did you call him, or did he call you?

A I reached out by email to the Principal Deputy Attorney General at that time, John Carlin.

Q Okay. So he was the PADAG before Mr. Barr [sic]?

A Correct.

Q And how often had you spoken with Mr. Carlin?

A Before this? Never.

Q Okay. So you initiated email contact with Mr. Carlin, and he referred you to Mr. Weinsheimer?

A I initiated email contact with Mr. Carlin, and I subsequently had a conversation with John Carlin, and I believe Brad Weinsheimer was on the call.

Q Okay. And what did they tell you about bringing the case in D.C. or different jurisdictions from yours?

A We discussed the fact that I would — they wanted me to proceed in the way it would typically be done, and that would involve ultimately reaching out to the U.S. Attorney in the District of Columbia. I raised the idea of 515 authority at that time because I had been handling the investigation for some period of time. And, as I said, they suggested let’s go through the typical process and reach out to D.C. and see if D.C. would be interested in joining or otherwise participating in the investigation.

So Weinsheimer was the primary supervisor of David Weiss on the Hunter Biden case.

That makes the meeting with Hunter Biden’s previous attorneys with Weinsheimer — which is fairly routine but was billed as a huge scandal by right wing nutjobs — something else entirely. As Politico described, after months of asking the people who should have had some supervisory role in the investigation, Clark finally emailed Weinsheimer asking whether he could appeal to him.

From the fall of 2022 through the spring of 2023, Clark sought meetings with people at the highest levels of the Justice Department — almost entirely without success. In multiple emails, he asked to meet with the head of the Criminal Division, the head of the Tax Division, the Office of Legal Counsel, the Office of the Solicitor General, Deputy Attorney General Lisa Monaco and the attorney general himself. On Feb. 21, 2023, Clark’s team reached out to multiple officials at Main Justice, who passed his request from one person to the next.

The search ended when Clark sent Associate Deputy Attorney General Bradley Weinsheimer an exasperated email, saying he had asked the government over and over to tell him who at headquarters they could appeal to if Weiss decided to charge their client.

“To date we have heard nothing in this regard,” he added.

“Please advise whether you would be the appropriate person to hear our client’s appeal, in the event that the U.S. Attorney’s Office decides to charge Mr. Biden,” he wrote.

Weinsheimer was indeed the right guy, and he met with Clark and Weiss on April 26.

As Weiss confirmed in his testimony, he attended that meeting with Weinsheimer.

Q Did Mr. Weinsheimer ever tell you that he met with Chris Clark?

A He — if — no. If he met with Chris Clark, I would have been at that meeting.

Q Okay. So there were no one-on-one meetings or telephone calls between Mr. Clark and Brad Weinsheimer?

A I am unaware of any such meeting, and I don’t think any such meeting would have occurred.

Of course Weinsheimer wasn’t going to accede to any of Clark’s requests, or even grant an independent review of some of the shitty things that had already gone on in the case. Presumably unbeknownst to Clark, Weinsheimer was signing off on Weiss’ actions all along.

And he didn’t. Two weeks after they met with Clark, Weinsheimer sent Clark a letter, “referring you back to” Weiss, saying that Weiss had full authority to charge the case wherever he wanted. It’s not clear that Weinsheimer ever revealed that he had assumed a supervisory role on the case a year earlier.

If Weinsheimer played a similar role with Robert Hur, the same would be true. Of course Weinsheimer wouldn’t, in that case, take action after Hur violated DOJ policy by smearing the President. That’s because Weinsheimer would have been in on it, part of the smear.

Except for the Special Counsel appointment

As David Weiss told it, there was an important exception that may have, may still, exacerbate all this.

He did not go through Weinsheimer when requesting Special Counsel authority.

Q And, when you submitted the request, was that through Mr. Weinsheimer?

A No. No, it wasn’t.

Q Did you have communications with Mr. Weinsheimer before you submitted the request?

A I did not have communications with Mr. Weinsheimer about the request before I submitted it.

Q Okay. You just went right to the Attorney General?

A I submitted the request on my own initiative, and, otherwise, I really can’t get into the particulars at all.

Q Right. Have you had subsequent conversations with Mr. Weinsheimer? Is he the individual that you reported to, or —

A After I was appointed?

Q Correct.

A Yes. I continue to discuss the matter with Mr. Weinsheimer.

Q So he’s your primary point of contact still?

A He continues to be my primary point of contact, yes.

And that communication with Merrick Garland was, at least at the time of Weiss’ testimony on November 7 (and so just over a week before Abbe Lowell started asking for discovery and subpoenas on the side channel and the Smirnov FD-1023), the only time he had ever communicated, in any form, with the Attorney General.

Q So the Attorney General has had a couple of silent appearances where this topic has come up, and I guess the question is, did you have direct communications with the Attorney General?

A I’ve never had any direct communications with the Attorney General, save my communication in requesting Special Counsel authority in August of 2023.

Q When you did request Special Counsel authority in August of 2023, how did you request it? Was it in writing or on the telephone?

A It was in writing, and that’s about all I’m going to say about that process.

Q Okay. Did you reach out directly to the Attorney General, or did you go through Mr. Weinsheimer?

A I’m not going to get into anything further. I requested it, and it was granted.

Q Okay.

I started writing this post before the arrest of Alexander Smirnov. At the time, I thought that Weiss might have gone directly to Garland only because Garland had promised the Senate he’d give Weiss Special Counsel authority if ever he asked it. That is, before the Smirnov arrest, it looked only like Weiss collecting on Garland’s promises.

No longer.

The significance of this has been missed. The FD-1023 assessment number, 58A-PG-3250958, cited Executive Branch public corruption. The only way the FD-1023 could be basis for ongoing criminal investigation is if Joe Biden were a subject of the investigation as well. That would make the Special Counsel request not a request for authority to charge in other Districts.

It would arise from the conflict of investigating the President.

Before even interviewing the informant’s handler — to say nothing of Smirnov himself — David Weiss got himself Special Counsel authority.

Few agree with me. But I think Weiss has walked himself into a shitshow. Even assuming that none of Abbe Lowell’s bids to throw out the indictments in Delaware and Los Angeles succeed — and the Smirnov indictment would seem to raise still more questions about why Weiss reneged on the plea deal — there’s good reason to believe the motion to suppress evidence from the laptop will surprise a good number of people, including the prosecutors. Consider what it means that attorneys for John Paul Mac Isaac abandoned their argument that the blind computer repairman had legal authority to snoop through and disseminate data he claims to believe belonged to Hunter Biden, focusing seemingly exclusively on a claim that Delaware’s two year statute of limitations for complaint from Hunter has expired: Judge Robert Robinson may not rule on that question, but that legal challenge may have confirmed that JPMI did not own the data he shared with the FBI after the FBI told his father he might not own it. The implications of that are fairly staggering, though I’ll wait before I lay them out explicitly.

And that’s before Smirnov — a 14-year source for the FBI, whose charged report was championed by Attorney General Bill Barr after Scott Brady claimed to have vetted it — starts challenging his own indictment. That’s before either Smirnov or Abbe Lowell raises Weiss’ conflict in charging it. I don’t think David Weiss has the team to pull that prosecution off without major blowback.

If there were a figure like Weinsheimer outside of this investigation to step in, to call a halt to this shitshow, now would be the time to do it. But as I understand it, Weinsheimer can’t do that, because — apparently aside from the Special Counsel request — he has been part of the process every step of the way.

I get why Merrick Garland would have chosen to do it this way: having a career ADAG oversee Special Counsels rather than the PADAG (in which role Hur supervised Mueller). But in SCO investigation after SCO investigation, it has turned the supervisory role into navel-gazing. And the attempt to ensure a higher level of independence has led to grave ethical problems.

Happy Delaware Laptop Day, for Those Who Celebrate

If I read the docket correctly, in a courtroom in Delaware today, Judge Robert Robinson will hear John Paul Mac Isaac’s motion to dismiss and Hunter Biden’s motion for summary judgement in the suit and countersuit over whether JPMI was legally entitled to first snoop through and then start disseminating data from a laptop JPMI claims to believe was dropped off by Hunter Biden, and whether a single statement Hunter Biden made about possibly being hacked that didn’t even name JPMI could be considered defamation.

Because CNN and Politico will also be arguing their motions to dismiss against the blind computer repairman in a follow-on to the same hearing, we might get some press coverage of the hearing. If not, it’s possible that a hearing that has the possibility of roiling 40 months of relentless Murdoch propaganda and both criminal cases against Hunter Biden will go uncovered.

No dick pic sniffer can control their glee that Hunter Biden has a deposition before Congress next week; they don’t seem to give a shit — or, even know — that a hearing that may determine the legal status of the laptop is happening today.

To mark the day, I wanted to return to a few details from Hunter Biden’s reply motion to compel from the other day.

First, on pages 3-4 in the section rebuking David Weiss for calling Keith Ablow’s photo of a photo of a table saw and sawdust a picture of Hunter Biden’s cocaine, the filing includes the text exchange explaining the photo.

2 The message excerpt on the following page is found on the data image provided to Mr. Biden by the prosecution (iPhoneXS_Chat_00000132). There is no Bates stamp for this material as discussed in Mr. Biden’s opening motion. (See Mot. at 18.)

The text appears to come from the iPhone XS that Gus Dimitrelos described as being encrypted on the device, along with a handy password stored right there on the laptop. Readers who have been following my voyage down the Hunter Biden rabbit hole will remember it all started when I read Gary Shapley’s notes indicating that the FBI, too, used a password discovered on the laptop to access the phone.

Laptop — iphone messages were on the hard drive but encrypted they didn’t get those messages until they looked at laptop and found a business card with the password on it so they were able to get into the iphone messages [my emphasis]

I opined at the time that, while the FBI might get away with accessing this encrypted device without a separate warrant, anyone else who accessed it — as Garrett Ziegler keeps confessing he did — may have committed a CFAA violation. Curiously, though, the FBI did get separate warrants for all the other devices backed up separately. That’s what the July 10, 2020 warrant did: permit the FBI to access four device backups that were already in hand, but that were separate backups.

Not this phone, though, the phone on which the photo of the photo of the table saw and sawdust that David Weiss claimed was cocaine might be found.

So on pages 3-4, Abbe Lowell explained that one place you might find Keith Ablow’s photo of the photo of the table saw and sawdust that Weiss misstook for cocaine was on a phone that was encrypted when the FBI first got the laptop.

Starting 16 pages later, Lowell returned to his request that prosecutors actually describe where they found particular pieces of evidence. Lowell explained that, yes, while it is true that last August he asked for an exact copy of the laptop, which “will be needed, for example, to challenge the chain of custody, provenance, or likely tampering with the data before it came into the possession of the government,” he also expected that prosecutors would provide some roadmap for where they’ve found things.

The prosecution mixes apples with oranges in charging that Mr. Biden is being “dishonest and misleading” in objecting to what the prosecution contends was a laptop it obtained being produced in the native format that he requested (Opp. at 19), but that is disingenuous. To be sure, Mr. Biden asked for an exact copy of the laptop so it could be examined in the same way in which it was originally found, which is helpful in making a forensic examination of the laptop. That will be needed, for example, to challenge the chain of custody, provenance, or likely tampering with the data before it came into the possession of the government.

However, this motion seeks something more—something traditionally provided in discovery. The crux of Mr. Biden’s complaint here is that the prosecution has not supplemented that production with an index or some other means that would identify which of the vast materials on the laptop the prosecution believes are relevant to this case. The request for the forensic copy is not the same. If the prosecution is claiming that it has not indexed the 220 gigabytes of data (which would be an odd statement), then it needsto say that, and, as with other requests, the dispute will end. If it does have what it normally has with vast amounts of e-data, without providing more, the defense is in a needle in a haystack situation.

Then he noted that the labels Derek Hines used for where investigators found things weren’t all that helpful, because those “titles [] are not even remotely descriptive of what they contain.”

This amount of mixed media data in this tech age is difficult to navigate. The text messages and photos cited by the prosecution in its motions, for example, are difficult to locate. They are “buried” in a convoluted collection of different backup folders and files and are not stored in one streamlined digital backup or application. The messages and photos cited come from “Apple iCloud Backup 01”; “Apple iTunes Backup”; “Apple iCloud Backup 04”; and “iTunes Backup (iPhone 11),” titles that are not even remotely descriptive of what they contain. (See DE 86-1.) For this reason, Mr. Biden requested an index of material (which the prosecution has now clarified it does not have), or Bates stamps for that which it had cited. (Opp. at 19.)

And not just what they contain, I’d add. The label, “iTunes Backup (iPhone 11),” which is where Hines described finding the photo of a photo of a table saw and sawdust almost certainly couldn’t be what Hines described it as — an iPhone 11 — because (as zscoreUSA noted) Apple didn’t announce the iPhone 11 until September 10, 2019, after the laptop was dropped off at JPMI’s shop and after a warrant was served on Apple.

I asked David Weiss’ spox about this, but it was another of a growing stack of questions of mine to which he didn’t even bother responding.

And Abbe Lowell — curse you! — isn’t much more help. Given his response that prosecutors have now fulfilled his request for guidance on where they found things, he must know whether iTunes Backup (iPhone 11) is that iPhone XS that was encrypted on the hard drive, but he’s not telling either.

In his opening motion, Mr. Biden merely requested, following the prosecution’s citation to myriad text messages and photos in its responses, that the prosecution indicate where on the image it provided Mr. Biden could find those referenced materials. (Mot. at 18.) The reason for this request was straightforward at the time: defense counsel could not locate certain of the messages and photos given the broad date ranges used by the prosecution to describe them (e.g., photos taken “Prior to October 12, 2018”; messages sent “prior to his gun purchase”; and photos taken “During November and December 2018”). (DE 86-1.) Mr. Biden appreciates that with the Exhibit filed with its opposition, the prosecution has now fulfilled this part of his request.

But Abbe Lowell did say this: at a meeting in August of last year, the first time when Lowell asked for a complete copy of the laptop (he had to ask again a month later), prosecutors told him that they had “independent sources” for everything helpful to their case.

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 is precisely why Mr. Biden requested the prosecution indicate where on the device he could find the quoted messages and referenced photos, and why he suggested these files were “left buried” among a set of voluminous files that, as made clear now, span multiple iPhone, iTunes, and iCloud backups. (Opp. at 19 (quoting Mot. at 17).) Nevertheless, Mr. Biden appreciates the prosecution providing the folder locations of the messages and photos it referenced. [my emphasis]

Remember: when they said that on August 29, 2023, they still had never obtained a warrant to search the laptop, or any of Hunter’s Apple content, for that matter, for evidence to support the gun crime. They also had not, and still have not, indexed the laptop so they know what is on there and how it got there.

And prosecutors are still saying that everything they need is available on Hunter’s iCloud account. Sort of. In the passage of the response where Hines raised this August 2023 request, he insisted that, “the primary source of evidence in this case is the evidence obtained from the defendant’s Apple iCloud account, which was produced to the defendant in a readily searchable format.”

No. No it is not. Here’s my updated table of what Hines included in his exhibit, updated so that the photo of a photo of a table saw and sawdust appears where it temporally belongs, showing that an iPhone XS received a text from Keith Ablow on November 20, 2018, the same day that some anomalous activity was happening with Hunter’s droidhunter account and in a period when an iPad attributed to Hunter was otherwise sending (but with just one exception, not necessarily delivering) a whole bunch of texts about being an addict. I’ve highlighted the records that don’t include hex numbers and aren’t obviously sourced to one of the iCloud backups for dramatic effect. Lowell’s comment seems to confirm that Derek Hines sourced the highlighted records to the laptop.

In addition to the sawdust photo and one of a box that, a new commenter noted is also not from Hunter, it is from Hallie, and even if it indicates drug use, it is much earlier drug use, the most important texts to the government’s case, the ones between Hunter and Hallie while he possessed the gun, appear to be sourced to the laptop.

So in August, at a point when prosecutors had never gotten legal permission to search the laptop for evidence of gun crimes, they nevertheless assured Abbe Lowell that everything they needed was available via verifiable sources. And then this month — just days before a Delaware court may resolve the matter of whether JPMI owned the laptop when, he claims, an FBI agent told his father to lawyer up because, “You may be in possession of something you don’t own” — Hines claimed that, “the primary source of evidence in this case is the evidence obtained from the defendant’s Apple iCloud account, which was produced to the defendant in a readily searchable format.”

And then he sourced the most important texts to his case to the laptop — a source that not only isn’t readily searchable, but is not even indexed.

Happy Delaware laptop day, everyone. Things might start to get interesting.

Update: The docket reflects that Judge Robinson reserved judgment on Hunter Biden’s motion for summary judgment and CNN and Politico’s motions to dismiss.

Update: NBC’s Gary Grumbach did a thread on the hearing. By his description, Hunter Biden will kill the suit against him easily (unsurprisingly, as he didn’t even mention JPMI’s name). But Grumbach didn’t include much of what must be a legal discussion about JPMI’s decision to release the information to Rudy.

Update, from comments: A detailed local report on the hearing, providing the detail that the biggest problem for Hunter’s claims are that he waited too long to sue.

Illustration of all the dissemination implicated in today’s hearing from Thomas Fine.

Click here for Hunter Biden’s Eight Legal Chessboards including links to all filings and schedules for other cases, including the Delaware lawsuit.