Hunter Biden: Which Came First, the Chick Selling Sex or the Extortion of Campaign Dirt?

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Darren Samuelsohn had a hilarious passage in his version of a story contemplating the prospect of Trump using his second term to seek revenge.

To his credit, unlike the NYT and WaPo versions of this story, he acknowledges that Trump already did this. He even manages to address maybe a quarter of the times when Trump did so, though always missing key details. For example, he describes that Trump fired Jim Comey as revenge, which led to the Mueller investigation.

Consider the firing of James Comey, who the president ousted less than four months into his first term following the FBI director’s public testimony that confirmed an active bureau investigation on potential collusion between Russia and the 2016 Trump campaign. The president’s move there ignited a chain of events leading to Special Counsel Robert Mueller’s appointment, which kept Trump’s White House stuck playing defense for a giant chunk of their four-year term and resulted in a costly series of guilty pleas, legal trials and court convictions for Trump associates that gave way to a series of controversial presidential pardons.

Samuelsohn even mentions “controversial” pardons! — if only in passing. But he doesn’t mention Trump’s concerted demand to prosecute Comey as a result, or the IRS investigation of Comey and Andrew McCabe that the IRS claims was just a wild coincidence.

The funny part is where Samuelsohn describes Rudy Giuliani’s efforts to dig up dirt on Joe Biden as something that, like the Comey firing, led to backlash: impeachment.

Another Trump personal lawyer, Rudy Giuliani, sparked the first House impeachment of the president in the aftermath of his mission to conjure up an investigation of the Biden family in Ukraine.

But then two topics — the Durham investigation and Trump’s revenge against Tom Emmer for voting to certify the 2020 election — and two paragraphs later, Samuelsohn introduces Abbe Lowell’s attempt to subpoena Trump as “another front.”

Or on another front, Hunter Biden’s lawyers earlier this month asked for a federal court’s permission to subpoena Trump, Barr and other senior Trump-era DOJ officials as they argue against “a vindictive or selective prosecution arising from an unrelenting pressure campaign beginning in the last administration, in violation of Mr. Biden’s Fifth Amendment rights under the Constitution.”

This is not “another front”! This is confirmation that the effort attributed here to Rudy continues to this day, is a central factor in the 2024 election to return to the White House.

As I noted, the requested subpoenas specifically ask for communications with, “attorney for President Trump (personal or other),” and the request for communications, “discussing any formal or informal investigation or prosecution of Hunter Biden,” should cover any copy of the Perfect Phone Call to Volodymyr Zelensky that Trump might have in his personal possession.

The subpoena is a request for records showing the tie between Rudy’s efforts and the still ongoing investigation into Hunter Biden, which has since morphed into the rationale for Republicans’ own impeachment stunt.

The tie is not imagined. Among other things, Lowell points to records showing then-PADAG Richard Donoghue scheduling a briefing with David Weiss’s team on October 23, 2020. The briefing transferred the FD-1023 created as a result of Bill Barr’s effort to set up an intake process for the dirt Rudy obtained from Russian agents and others.

In fact, all the details of the investigation that Joseph Ziegler has shared raise questions whether there would ever have been a Hunter Biden grand jury investigation were it not for the dirt Ukrainians — possibly downstream of and ultimately directly tied to Rudy’s efforts to obtain dirt on Hunter Biden — shared with DOJ in 2019.

To be sure, Ziegler claims credit.

In his original testimony to House Ways and Means, Zeigler described that he decided to investigate the former Vice President’s son based off a Suspicious Activity Report tied to a social media site involving sex workers. From there, he read about Hunter’s contentious divorce. And from that he decided to launch a criminal investigation.

I started this investigation in November of 2018 after reviewing bank reports related to another case I was working on a social media company. Those bank reports identified Hunter Biden as paying prostitutes related to a potential prostitution ring.

Also included in those bank reports was evidence that Hunter Biden was living lavishly through his corporate bank account. This is a typical thing that we look for in tax cases — criminal tax cases, I should say.

In addition, there was media reporting related to Hunter Biden’s wife, ex-wife, divorce proceedings basically talking about his tax issues. And I wanted to quote some of the things that were said in her divorce filing which was public record.

“Throughout the parties’ separation, Mr. Biden” — referring to Hunter Biden — “has created financial concerns for the family by spending extravagantly on his own interests, including drugs, alcohol, prostitutes, strip clubs, gifts for women with whom he had sexual relationships with, while leaving the family with no funds to pay legitimate bills.

“The parties’ outstanding debts are shocking and overwhelming. The parties have maxed-out credit card debt, double mortgages on both real properties they own, and a tax debt of at least $300,000.”

This is all the information that I had in my hand in November when I wanted to open this investigation.

His supervisor, Matt Kutz, treated the investigation of the former Vice President’s son as a sensitive matter and demanded more evidence before letting Ziegler open the investigation.

After discussing the case with my previous supervisor at the time, Matt Kutz, he made a decision to look into the case further before sending it — sending the case up for referral.

[snip]

My manager at the time told me, “No, you cannot do that. That’s a tax disclosure issue.” I didn’t agree with him because there’s been multiple instances where we do that. That’s a normal part of our job. But he was my manager, and I wasn’t going to fight him on it, and he told me that I had to open this up the normal tax administrative way that we would do [for] these cases.

[snip]

[H]e said a political family like this, you have to have more than just an allegation and evidence related to that allegation. In order for this case to move forward, you basically have to show a significant amount of evidence and similar wrongdoing that would basically illustrate a prosecution report.

So he’s basically telling me that I have to show more than just non-[filed] tax returns and the information from the ex-wife in the divorce proceedings.

During Democrats’ questioning, Ziegler described how persistent were his efforts to find some basis to open an investigation into Hunter Biden.

Mr. [Ziegler]. My initiation packet, so sending the case forward to get — we call it subject case. It’s an SCI. It’s elevating the case to actually working the investigation.

My first one showed the unfiled returns and the taxes owed for 2015 and that was it on my first package. So that was the wrongdoing that we were alleging.

And my supervisor goes: You don’t have enough. You need to find more.

So I kept digging for more and more. And even after that point, he goes: You haven’t found enough.

So I ended up searching bank reports that [I] ran on the periphery of what we were looking at.

So I ran bank reports for Burisma, and in those bank reports I had found additional payments that Hunter had received. And then at that point I had found that Hunter did not report the income for 2014 related to Burisma.

So now I had a false return year. So that alone — it was basically so much evidence that I put in there — allowed us to elevate the case.

It took Ziegler three attempts before he was able to show enough evidence of wrong-doing that Kutz would agree to send the referral to DOJ Tax. That’s what led to the decision — at first, Ziegler attributed the decision to Bill Barr personally, though subsequently retracted that claim — to merge his IRS investigation with one Delaware had opened in January 2019.

So after three of these initiation packages, he finally allowed me to push this forward to DOJ Tax for their review.

So the way that our grand jury cases — or the way — I’m sorry. The way that our cases work is when the case is referred from IRS to DOJ Tax, the case has to go through our ASAC and SAC, and then it goes to DOJ Tax where they review and approve it and send it to the appropriate venue or jurisdiction.

So in [or] around March or April of 2019, the case went up to DOJ Tax.

And at that time we were told that William Barr made the decision to join two investigations together. So at that point in time I had found out that Delaware had opened up an investigation related to the bank reports and that that occurred in January of 2019, so 2 months after I started mine.

So when I found out about their case and was told that we had to merge the two, I did a venue analysis. I showed them that, “Hey, the venue’s in D.C. It’s not in Delaware. We need to work this in D.C.” But, ultimately, I was overruled, and it was determined to send the case, join the two case together, and work everything under Delaware. [my emphasis]

Here and elsewhere, Ziegler (working from memory) obscures details of this timeline: about when he came to learn of the Delaware investigation and when he submitted his finalized package for DOJ Tax.

In an email Ziegler sent in April 2019, though, he memorialized that, “Approx. February 2019 — My SSA advised me about the Delaware USAO looking into Robert Doe subsequent to the [Suspicious Activity Report]” on which Ziegler himself had predicated his investigation. That same email described submitting the package to DOJ Tax on April 12, 2019.

Two weeks later, his supervisor relayed the news that the case would end up in Delaware.

Jason Poole telephoned me and advised after inter‐department discussions well above his level, it is highly likely the Robert Doe case will go to the Delaware USAO for investigation.

So while Ziegler may have decided to pursue the former Vice President’s son based on payments to sex workers and divorce records before Delaware opened an investigation, DOJ Tax had not even considered whether this merited a criminal investigation until April 2019, at which point someone high up — possibly even the Attorney General himself — decided Delaware would oversee the case.

By that point, Delaware had been investigating for up to three months, and Ziegler had known that for two months.

That’s important because, if we can believe Johnathan Buma (I raised some cautions about his claims here), the FBI got a tip about Hunter Biden from two Ukrainians with ties to that country’s Prosecutor General’s Office in January 2019.

In January, 2019, DYNAMO, ROLLIE and THE ECONOMIST were taken to the US Attorney’s Office in downtown Los Angeles, where they presented severd of these schemes to an Assistant United States Attorney (AUSA), who was interested in pursuing money laundering cases in violation of the FCPA, which implicated US entities or persons. THE ECONOMIST’s presentation included detailed information concerning several multi-million and multi-billion dollar schemes. The information was based on an extrapolation of open-source information from Ukraine, as well as insight from THE  ECONOMIST’s consulting work in the PGO and ROLLIE’s foundation. One of the described scenarios alleged Hunter Biden (Hunter) had been given a lucrative position on the board of directors of the energy company, Burisma Holdings Limited (Burisma), and was likely involved in  unreported lobbying and/or tax evasion.

This approach from people affiliated with Ukraine’s Prosecutor General’s Office (my earlier post provides descriptions of those ties) came months after Rudy Giuliani first tasked Lev Parnas with finding this dirt in November 2018 and after Trump had gotten personally involved.

Later that month [on December 6], I attended a Hanukkah celebration at the White House where Giuliani and Trump were both present. Trump approached me briefly to say, “Rudy told me good things. Keep up the good work.” Then he gave me a thumbs-up in approval.

By January 2019, Parnas was in communications with both Viktor Shokin and Yuri Lutsenko, both of whom might have had ties to Rollie and the Economist. On January 26, Lutsenko shared a package of information on Burisma that, again, has similarities to what Rollie shared that same month.

According to Buma, sometime after the January 2019 presentation Rollie and The Economist made to the Los Angeles US Attorney’s Office, Buma submitted an FD-1023 about their package and spoke to two FBI case agents located in Baltimore on the already ongoing investigation into Hunter Biden about it.

After receiving the presentation from ROLLIE and THE ECONOMIST, THE ECONOMIST provided me a thumb drive with some supporting documentation, much of which was in the Ukrainian language, which I do not speak. After I submitted my FD-1023 reports on this information, I was put in touch with two agents working out of the Baltimore office on a case based in Delaware involving Hunter. I spoke on the phone with these agents, who were very interested in the information due to its relation to their ongoing investigation that was mostly involving allegations of Hunter’s involvement with drugs and prostitution. Information derived from ROLLIE and THE ECONOMIST had previously been found to be credible, so this was handled carefully and quickly transferred over to the agents in Baltimore and was serialized in their case file.

As Buma described it, by the time this information showed up in the press, it had become clear that Rollie and the Economist shared the information for influence purposes tied to Joe Biden’s run for the presidency, not law enforcement.

[T]he derogatory information concerning the Bidens and Burisma quickly emerged in domestic US. media, suggesting that it was being provided for political influence rather than law-enforcement purposes.

But that didn’t prevent the Ukrainians from being invited, some time after June 26, 2019, to attend an event associated with the White House at which Rollie gave Mike Pompeo the same package of derogatory information on Hunter Biden. And somewhere along the line, Buma’s primary source who introduced them to the Los Angeles US Attorney’s Office had direct contact with Rudy Giuliani.

The precise relationship between Rollie and The Economist and Rudy’s efforts, started month earlier, remains obscure. But both had begun well before Ziegler’s pitch to DOJ Tax to investigate Hunter Biden criminally, and it’s likely that Delaware had the FD-1023 from the Ukrainians before DOJ Tax approved the investigation.

And by that point, in April 2019, Ziegler’s supervisor — the same guy who insisted he needed more than payments to sex workers to open an investigation into a politically sensitive figure — started documenting the demands for just such an investigation.

Around the same time in 2019, I had emails being sent to me and the Hunter — and the prosecutors on the case, the Hunter Biden prosecutors, from my IRS supervisor. So this was Matt Kutz still.

From what I was told by various people in my agency, my IRS supervisor, Matt Kutz, created memos which he put in the investigative files regarding the investigation potentially violating the subject’s Sixth Amendment rights. He also referred to Donald Trump’s tweets at the time.

[snip]

Q Okay. You’re talking about 2019. You were mentioning the fact that there was a George Murphy that was writing memos or emails and documenting some of his conclusions that were on the other side regarding this case.

Could you tell us more about him? What’s his title and who is he and how does he relate to you in terms of your chain of command?

A So it was actually Matthew Kutz. He was my supervisor at the time and from the articles that he was sending me, I would say he had more of a liberal view than I had and it was pretty obvious from the things he would send me and discuss. And that’s just me making an observation.

So I later found out about these memos that were put in the file regarding the issues that he saw with the investigation, the fact that we even had it opened. So I only learned about those after. And then it came to a point to where he’s sending us so many media articles about different issues that I had to tell him stop, please.

And I had to go around him. And that’s when I went to my ASAC at the time, George Murphy, who was above him.

MAJORITY COUNSEL 2. Off the record.

MAJORITY COUNSEL 1. Off the record. [Discussion off the record.]

MAJORITY COUNSEL 1. On the record.

Mr. [Ziegler]. So these articles were a lot about — were a lot of articles regarding Trump and getting a fair investigation and things related to that, Trump’s tweets and stuff like that. So, that’s what drew me to my conclusion.

BY MINORITY COUNSEL 1: Q What was the purpose behind him sending you the Trump tweets? What was he trying to get at, or was he trying to give you more information for your case? Why would he send those, or do you know?

A Yeah, I think he was bringing up concerns with potentially us prosecuting the case down the road, potential issues we’re going to incur. I don’t remember the exact email that he sent that caused me to be — that he had to stop sending me some of the news articles, because it wasn’t even the fact that he was sending me these news articles. It was the opinion he was providing in those emails that I did not agree or that I did not — not agree with but did not think was appropriate.

Gary Shapley replaced Kutz in 2020 — possibly because Kutz insisted on documenting the demands from the President for Ziegler’s thinly-predicated investigation — around the same time Bill Barr set up a means to ingest Rudy’s dirt.

But in 2019, Kutz was documenting in real time the problem with pursuing the son of Donald Trump’s opponent while Donald Trump demanded such investigations via Tweet.

It’s in the case file.

Trump’s demands for an investigation into Hunter Biden were deemed by the IRS SSA to be problematic influence on the case in 2019. Yet that investigation continues, now bolstered by Special Counsel status, and is the basis for the GOP impeachment pitch.

Samuelsohn’s rag has a reporter, Stephen Neukam, covering the GOP impeachment stunt almost half time (though Neukam apparently hasn’t bothered to cover the Scott Brady testimony that lays out even more details of how Barr set up a means to filter Rudy’s dirt into the Hunter Biden investigation, evidence that — contra Ziegler — Barr was “weigh[ing] in, or seek[ing] updates on the investigation after those cases were joined”). Barr has confirmed, on the record, knowledge of how information was shared from Brady to Weiss.

Yet Samuelsohn describes Rudy’s intervention as something past, something unrelated to the future prospect of Trump ordering up investigations into his rivals.

You cannot understand the GOP impeachment pitch — you cannot claim to be doing journalism on the Republican effort to impeach Hunter Biden’s father — unless you understand the ties between Rudy’s efforts and the Hunter Biden investigation.

You can write all you want about how institutional guardrails might stymie Trump’s efforts to politicize DOJ in the future. But if you gloss over evidence that those guardrails failed in Trump’s past Administration, if you ignore how Trump’s success at politicizing DOJ continues to have repercussions to this day — indeed, continues to be a central issue in the election — then you’re not really addressing the threat Trump poses, past and future.

Update: Fixed date of October 23 briefing.

The MAGA Tourist Geofence and the Violent Confederate Flag-Toting Geofence

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By my rough count, Judge Tanya Chutkan has presided over the cases of more than 25 January 6 defendants, in addition to Donald Trump. Nevertheless, Trump keeps trying to lecture Chutkan about what happened, often by pointing to reports from journalists who have not otherwise covered the investigation closely.

Contrary to their false claims about how much video she has seen, Judge Chutkan knows these details far better than Trump’s attorneys.

For example, Trump keeps pointing to a December 2021 piece from Will Arkin to argue, using very dated numbers regarding the investigation, just one percent of his mobsters qualify as insurrectionists.

The Secret Service and the FBI estimated that at least 120,000 Americans gathered on the Mall for President Trump’s speech. 6 Government agencies estimated that about 1,200 people—at most 1% of the size of the crowd gathered to listen to President Trump—entered the Capitol, and a smaller percentage than that committed violent acts. 7 Thus, we can easily conclude that well over 99% of the attendees at President Trump’s speech did not engage in the events at the Capitol. Moreover, as the Indictment recognizes, a crowd had gathered at the Capitol before President Trump finished speaking, further proving he had nothing to do with those events.

6 William M. Arkin, Exclusive: Classified Documents Reveal the Number of January 6 Protestors, NEWSWEEK (Dec. 23, 2021), at https://www.newsweek.com/exclusive-classified-documentsreveal-number-january-6-protestors-1661296. The January 6 Committee estimated the crowd on the Mall at 53,000, while President Trump estimated it at 250,000. Compare Final Report, SELECT COMMITTEE TO INVESTIGATE THE JANUARY 6TH ATTACK ON THE UNITED STATES CAPITOL (Dec. 22, 2022), 585, at https://www.govinfo.gov/content/pkg/GPO-J6-REPORT/pdf/GPO-J6-REPORT.pdf with Read Trump’s Jan. 6 Speech, A Key Part of Impeachment Trial, NPR (Feb. 10, 2021), at https://www.npr.org/2021/02/10/966396848/read-trumps-jan-6-speech-a-key-part-ofimpeachment-trial (emphasis added).

7 Id. (“[T]he facts seem to indicate that as few as one percent of the people who were there fit the label of insurrectionist.”).

There are a slew of problematic assumptions in Arkin’s piece (as well as the follow-up piece that appears to be the actual source cited in footnote 7): about the relationship between militias and others, about the role of non-militia organized groups like QAnon or anti-vaxxers, about the role and increasing percentage of military participants.

The most important misconception is that only people who entered the building, as distinct from the often more violent crowds outside it or Proud Boy seditionists orchestrating things from afar, could be an insurrectionist.

Plus, Arkin’s 2021 numbers were outdated at the time — most outlets put the number of insiders at 2,000 to 2,500 at the one year anniversary and the Sedition Hunters have identified 3,200 specific people who went inside the Capitol (though this includes people, including at least one WaPo journalist, who weren’t rioters).

Given Trump’s reliance on such outdated numbers, however, I wanted to look at a filing in the latest challenge to one of the geofence warrants used in the investigation, this time from Isreal Easterday, a Confederate-flag toting rioter who sprayed two cops before entering the Capitol through the east door.

There have already been two failed challenges to geofence warrants used in the investigation. In August 2022, then-Chief Judge Beryl Howell rejected Matthew Bledsoe’s challenge to a geofence of those who live streamed to Facebook during the riot; he is appealing his conviction, but not that ruling. In January, then-presiding FISA Judge Rudolph Contreras rejected David Rhine’s challenge to the Google geofence tied to voluntary use of Google’s Location History service (there’s no FISA component to this, but FISA judges see more novel Fourth Amendment issues). Rhine does appear to be including that ruling in his appeal, in which his initial brief is due in February.

Like Rhine, Easterday is challenging the Google geofence, but from a Fourth Amendment standpoint, he is different than Rhine in two key ways. First, the investigation into Rhine started from some tips called in as early as January 10, 2021; the FBI didn’t need the Google geofence to find him, though it made it easier to pinpoint video of his path through the Capitol.

With Easterday (probably because two distinctive aspects of his appearance changed that day — he dropped his flag and took off his hat — making it harder to track him), the first really good lead on his identity was the geofence.

The second difference between Rhine and Easterday arises from the technicalities of how the FBI did the geofence.

The FBI did three rounds of geofence with Google. In the first, starting with a January 13, 2021 warrant to Google, they:

  • Obtained the identifiers for all the phones that hit the geofence during the riot
  • Took out the identifiers that were present in the building in the 15 minutes before and after the riot (assuming those were people who were lawfully present in the Capitol)
  • Sorted out hits that were in places (for example, areas where surveillance footage showed no rioters to be present) inconsistent with unlawful activity
  • Eliminated identifiers without at least one hit entirely within the Capitol factoring in margin-of-error radius
  • Added back in identifiers with lower confidence radius that deleted Location History with the week after the attack
  • Asked Google to deanonymize that data

For the second round, they submitted a second request for deanonymization on April 14, based on the logic that those for whom there were only low confidence hits within the Capitol would be high confidence hits for the larger restricted area.

Based on the same logic, on May 21, 2021, the FBI obtained a second geofence warrant to include (per Easterday’s filings) the entire restricted area on January 6.

This time, to cull the data, they:

  • Obtained the identifier for all the phones that hit the geofence during the riot
  • Removed identifiers previously deanonymized
  • Took out the lawfully present identifiers either voluntarily identified by Congressional offices or obtained by law enforcement
  • Removed identifiers present in the 15 minutes before or after the riot
  • Eliminated identifiers without at least one hit entirely within the restricted grounds
  • Asked Google to deanonymize that data

Rhine’s phone identifier was included in the first batch of identifiers the FBI asked to be deanonymized, a group of about 1,500 identifiers; Easterday’s was not. His phone was included in the second batch deanonymized, an additional 2,200 identifiers obtained in the first warrant. His phone was also IDed in the second warrant, but by that point had already been deanonymized.

The details of how the Google geofence worked were described in filings in the Rhine case (see this post and this post), but because Easterday was not identified until the second batch, the second cull gets more attention in Easterday’s filings.

Easterday did enter the Capitol. There are pictures of him wandering hallways and stairs. On October 26, a jury convicted him of trespassing inside the Capitol, 40 USC 5104, along with the more serious assault and riot felonies he committed outside the building.

Easterday was only inside the Capitol itself for 12 minutes — he entered at 2:39 and exited at 2:51; Easterday entered three minutes before Rhine but left 13 minutes before Rhine. But he would have been at the east door — not inside the Capitol, but helping to violently break into it — for at least 22 minutes; the assault on one of the cops was captured in video that starts at 2:17.

There are a number of possible explanations for why Easterday phone would not have had a high confidence hit inside the Capitol geofence but did trigger the broadened geofence. For example, the original hit or hits on Easterday’s phone may have been in a location (such as the east door) where the confidence radius of the location was partially outside the Capitol itself. Some of the relevant hits were surely entirely within that area outside the Capitol but inside the restricted area that day. As the government noted in their response to this challenge, being in that area was also a trespassing crime, 18 USC 1752, even if DOJ charged fewer of the people who were in that area. The jury convicted Easterday of that crime, too.

The government provided a supplement answering specific questions Chief Judge James Boasberg posed after the guilty verdict that provides more possible explanations why Easterday did not trigger the geofence within the building at high confidence. For example, it describes that iPhones capture a lot less activity in Location History than Androids do.

[Location History] is sometimes collected automatically, but is primarily and most frequently collected when a user is doing something with his or her device that specifically involves location information (such as following Google Maps directions or taking photographs or videos that record location as part of their metadata).

Moreover, in the government’s experience examining Google LH returns, the range of activities that generate a LH point is narrower on Apple’s iPhones than Android phones. Apple iPhones apparently collect LH data primarily when the user is specifically using Google Maps.

[snip]

In contrast, Android phones can collect LH data when the user uses a wider array of Google-based applications, or even when the device is not in use at all, such as when it is sitting on a user’s bedside table overnight. Additionally, if an Android phone detects that a user is moving, the Android phone specifically and automatically requests location data from the server about every two minutes, leading to a LH data point being collected by Google. However, if the phone determines that the user is standing relatively still, or remaining within the same Wi-Fi network’s range, Android phones will request location data much less frequently, as the phone is effectively not moving. Similarly, devices will not automatically request location data from the server—or will do so less frequently—when they are low on battery.

Easterday appears to have made a call while inside the building (which would trigger a different kind of location data, but data that DOJ only obtained with individualized warrants), but that’s less likely to be captured in Location History than taking a picture would.

Judge Boasberg’s request for more information — an order he made after the guilty verdict — appears to stem, in significant part, from the fact that FBI’s initial exclusion set of 215 people is obviously a mere fraction of the people who were lawfully in the Capitol that day.

(2) how could the Control List searches for the Initial Google Geofence Warrant have generated hits for only 215 unique devices/accounts when Google applications are so ubiquitous and presumably between 1,500-2,000 people were lawfully present in the Capitol building in the time periods before and after the riot?

It its earlier filings, DOJ used a dated stat that only 30% of Google users actually use the Location History service, a service that takes several steps to turn on. In this filing, DOJ argues that as the proportion of iPhone users increase, the number of people who trigger Location History will be smaller still, unless they’re using Google maps.

Boasberg is suggesting (and DOJ is not contesting) that their initial exclusion effort may only have included about 15% of those lawfully in the Capitol. While there would be some subset of people lawfully present who weren’t excluded in the first batch (people who were not moving in the 15 minutes before and after but who fled or took pictures during the riot, for example), this filing suggests all these numbers are low — very low.

If just one third of the people who entered the building could be expected to trigger the Google geofence, then the number who entered may be well over 4,000 (a reasonable number given the number Sedition Hunters have IDed).

If just a third of the people who were at the Capitol but not necessarily taking pictures inside it triggered the Google geofence, that number might be closer to 7,000 additional bodies, including those assaulting cops. And there could be another 23,000 people outside the Capitol — some no more than MAGA tourists, but others among the most violent people that day.

Using the Arkin numbers that were outdated when he published them in December 2021, Trump claims that, “we can easily conclude that well over 99% of the attendees at President Trump’s speech did not engage in the events at the Capitol.”

That’s not what the geofence shows. Using the same 120,000 number he uses for his own calculations, about one in ten were right at the building and a quarter may have made it to restricted ground, and the numbers could be double that.

One thing is clear though: the violent mobsters literally carrying the banner of insurrection as they attack cops may not be the ones you’ll find taking pictures inside the Capitol. And once you figure that out, the numbers of potential Trump insurrectionists starts to grow.

And Judge Chutkan knows that.

Take, Robert Palmer, whom Trump raised to complain that Chutkan had presided over the prosecution of someone who said he went to the Capitol at Trump’s behest, where he serially assaulted cops because he believed he needed to stop the voter certification. Robert Palmer never entered the Capitol. But it’s quite clear he believes Trump sent him.

Update: Distinguished between the two trespassing crimes to show one can be applied to both locations.

Timeline Easterday Google Geofence Challenge

June 30, 2023: Motion to Compel, Declaration

August 22, 2023: Opposition Motion to Compel

September 26, 2023: Motion to Suppress Geofence

October 10, 2023: Opposition Motion to Suppress

October 17, 2023: Reply Motion to Suppress

October 26, 2023: Guilty Verdict

November 25, 2023: Supplement Opposition Motion to Suppress

In an Attempt to Claim Vindictive Prosecution, Trump Confesses Biden Hasn’t Interfered Like He Has

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To substantiate a claim that Joe Biden ginned up the twin prosecutions against him (motion, reply), Donald Trump picked two clauses (in italics) in an article (live link) that repeatedly describes the various ways that Biden and Merrick Garland have restored the independence to the Department of Justice from what it had been under Trump.

The attorney general’s deliberative approach has come to frustrate Democratic allies of the White House and, at times, President Biden himself. As recently as late last year, Mr. Biden confided to his inner circle that he believed former President Donald J. Trump was a threat to democracy and should be prosecuted, according to two people familiar with his comments. And while the president has never communicated his frustrations directly to Mr. Garland, he has said privately that he wanted Mr. Garland to act less like a ponderous judge and more like a prosecutor who is willing to take decisive action over the events of Jan. 6.

[snip]

In a statement, Andrew Bates, a White House spokesman, said the president believed that Mr. Garland had “decisively restored” the independence of the Justice Department.

“President Biden is immensely proud of the attorney general’s service in this administration and has no role in investigative priorities or decisions,” Mr. Bates said.

A Justice Department spokesman declined to comment.

The Jan. 6 investigation is a test not just for Mr. Garland, but for Mr. Biden as well. Both men came into office promising to restore the independence and reputation of a Justice Department that Mr. Trump had tried to weaponize for political gain.

[snip]

Complicating matters for Mr. Biden is the fact that his two children are entangled in federal investigations, making it all the more important that he stay out of the Justice Department’s affairs or risk being seen as interfering for his own family’s gain.

The department is investigating whether Ashley Biden was the victim of pro-Trump political operatives who obtained her diary at a critical moment in the 2020 presidential campaign, and Hunter Biden is under federal investigation for tax avoidance and his international business dealings. Hunter Biden has not been charged with a crime and has said he handled
his affairs appropriately.

Justice Department officials do not keep Mr. Biden abreast of any investigation, including those involving his children, several people familiar with the situation said. The cases involving Hunter Biden and Ashley Biden are worked on by career officials, and people close to the president, including Dana Remus, the White House counsel, have no visibility into them, those people said.

[snip]

Officials inside the White House and the Justice Department acknowledge that the two men have less contact than some previous presidents and attorneys general, particularly Mr. Trump and his last attorney general, William P. Barr.

Some officials see their limited interactions as an overcorrection on the part of Mr. Garland and argue that he does not need to color so scrupulously within the lines. But it may be the only logical position for Mr. Garland to take, particularly given that both of Mr. Biden’s children are involved in active investigations by the Justice Department.

The distance between the two men is a sharp departure from the previous administration, when Mr. Trump would often call Mr. Barr to complain about decisions related to his political allies and enemies. Such calls were a clear violation of the longtime norms governing contact between the White House and the Justice Department.

Mr. Biden, a former chairman of the Senate Judiciary Committee, came to his job as president with a classical, postWatergate view of the department — that it was not there to be a political appendage. [my bold and italics]

Since the two clauses on which Trump relies conform with the evidence presented in the rest of the article — which is to say, they show that Biden has taken no steps to share his views with the Attorney General — Trump simply invents something that’s not in the article: a claim that Biden deliberately planted these quotes as a way to give Garland an order to prosecute Trump.

The Biden administration intentionally leaked these comments to the media in early 2022 so that President Biden could improperly provide instructions to and exert pressure on prosecutors and investigators without engaging in direct communications, as is clear from the fact that the article sourced the operative remark to “two people familiar with his comments.” Id.

Trump then dismisses prosecutors’ argument that such anonymous claims are not evidence by likening the misrepresentation of the article to three times Jack Smith prosecutors cited newspaper reports.

The reports at issue are not, as the prosecution claims, based on “rumor and innuendo.” Doc. 141 at 6. The Washington Post article is “based on internal documents, court files, congressional records, handwritten contemporaneous notes, and interviews with more than two dozen current and former prosecutors, investigators, and others with knowledge of the probe.” Doc. 116-1 at 3. The New York Times article is attributed to “interviews with more than a dozen people, including officials in the Biden administration and people with knowledge of the president’s thinking, all of whom asked for anonymity to discuss private conversations.” Doc. 116-2 at 2. For example, President Biden’s instruction that President Trump “should be prosecuted” is sourced to “two people familiar with his comments.” Id

7 See, e.g., Doc. 97 at 10; Doc. 109 at 30; Doc. 140 at 11.

Those three reports are:

A citation to a threat included in a WaPo report.

6 See Washington Post, FBI Joins Investigation of Threats to Grand Jurors in Trump Georgia Case, (Aug. 18, 2023), https://www.washingtonpost.com/nationalsecurity/2023/08/18/fbi-joins-investigation-threats-grand-jurors-trump-georgia-case/ (citing an online post stating, “These jurors have signed their death warrant by falsely indicting President Trump”)

A reference to the fact that Clinton entered into a deal to avoid indictment when he left office:

The same is true for President Clinton’s “forthright admission that he gave false testimony under oath” about matters occurring during his presidency in order to avoid indictment after his presidency. See John F. Harris & Bill Miller, In a Deal, Clinton Avoids Indictment, Washington Post (Jan. 20, 2001). 12

12 https://www.washingtonpost.com/archive/politics/2001/01/20/in-a-deal-clinton-avoids-indictment/bb80cc4c-e72c-40c1-bb72-55b2b81c3065/.

Factual details about the identities and now proven — all have now either been convicted or pled guilty — crimes of members of the J6 choir with whom Trump made a video.

The January 6 Choir includes defendants who assaulted law enforcement officers on January 6 and one who used chemical spray on a Capitol Police officer who died the next day. See Washington Post, Behind Trump’s Musical Tribute to Some of the Most Violent Jan. 6 Rioters (May 7, 2023), https://www.washingtonpost.com/investigations/interactive/2023/trump-j6-prison-choir/

This insane argument, which effectively insists on the truth value of the NYT article that states over and over that Biden has not done what Trump did to politicize investigation as part of a bid to claim that Biden has politicized this investigation comes after Hunter Biden made a bid to subpoena Trump for evidence of how he did interfere in the investigation of Joe Biden’s son.

Instead of anonymous quotes that actual confirm Biden hasn’t spoken with Garland about these investigations, Abbe Lowell relied on eight public tweets, including one blasting David Weiss and calling for a death sentence for Hunter.

D. Trump Truth Social post on July 11, 2023: “Weiss is a COWARD, a smaller version of Bill Barr, who never had the courage to do what everyone knows should have been done. He gave out a traffic ticket instead of a death sentence. Because of the two Democrat Senators in Delaware, they got to choose and/or approve him. Maybe the judge presiding will have the courage and intellect to break up this cesspool of crime. The collusion and corruption is beyond description. TWO TIERS OF JUSTICE!”

Another of the tweets in the bid for subpoenas denied any involvement in the prosecution ten days before — notes from Richard Donoghue show — Trump interjected a complaint about Hunter Biden’s treatment amid complaints that DOJ wasn’t backing Trump’s false claims about election fraud, both of which led up to a threat to replace Jeffrey Rosen with Jeffrey Clark.

For example, on December 27, 2020, then Deputy Attorney General Donoghue took handwritten notes of a call with President Trump and Acting Attorney General Rosen, showing that Mr. Trump instructed Mr. Rosen and Mr. Donoghue to “figure out what to do with H[unter] Biden” and indicating Mr. Trump insisted that “people will criticize the DOJ if he’s not investigated for real.”

[snip]

D. Trump tweet on December 17, 2020: “I have NOTHING to do with the potential prosecution of Hunter Biden, or the Biden family. It is just more Fake News. . . .” [emphasis original]

Side note: Lowell very graciously didn’t point out that Donoghue, in his January 6 testimony, tried to spin these notes to make them less damning then they are, possibly up to including adding an “H” after the fact to pretend that Trump didn’t also consider the investigation of the son to be an effort to get to the father, as Trump’s earlier tweet made clear he did and does.

It wasn’t just Jeffrey Rosen with whom Trump raised the Biden investigation. Lowell also cited the passage from Barr’s book where Trump raised Hunter directly with the Attorney General.

Additionally, former Attorney General Barr’s latest book recalls an instance in mid-October 2020 in which President Trump called Mr. Barr and inquired about the investigation of Mr. Biden, which Mr. Barr says ended with Mr. Barr yelling at Mr. Trump, “Dammit, Mr. President, I am not going to talk to you about Hunter Biden. Period!”

And Lowell cited the reference to the briefing Scott Brady’s team did with David Weiss’ team to share an allegation Mikola Zlochevsky made sometime close to the time when, according to Chuck Grassley, Barr’s DOJ shut down an investigation into Zlochevsky.

Gary Shapley Aff. 3, attach. 6 (IRS CI Memorandum of Conversation, Oct. 22, 2020), (“Pittsburgh read out on their investigation was ordered to be received by this prosecution team by the PDAG.”), available at https://gopwaysandmeans.house.gov/wp-content/uploads/2023/09/T87-Shapley-3_Attachment-6_WMRedacted.pdf.

Lowell did not close the loop on this to show Barr confessing to personal knowledge of Brady’s project and the details of how the FD-1023 memorializing the Zlochevsky allegation got shared with Weiss, tantamount to a confession that he lied in his book. Nor did Lowell mention the Perfect Phone Call in which Trump asked the President of Ukraine to work with Barr to investigate the Bidens or the allegation that Trump’s handlers had removed a damning reference to Burisma.

You’re with me so far, right? In support of a claim that Joe Biden has interfered in the prosecutions of Trump, Trump demands that DOJ treat as reliable an article that says, in about seven different ways, that Biden doesn’t do that. And Trump did that a week after Hunter’s lawyer laid out eight tweets, two memorializations of conversations with Trump, two primary documents, and two congressional depositions, all of which show high level involvement and, at least on Trump’s part, attempted interference in the Hunter investigation, which ignores some of the most important public documents memorializing Trump’s interference.

But it gets crazier!

In response to AUSA Thomas Windom’s observation that, “the defendant does not provide the Court with even the roughest sketch of what this ‘fact finding’ would entail or uncover,” Trump says his discovery request already laid that out.

Finally, the Special Counsel’s Office professes confusion about what the fact finding “would entail” and claims that it requires a “rough[] sketch.” Doc. 141 at 14. The Supreme Court has provided one, in a case the Office cited: “the Government must assemble from its own files documents which might corroborate or refute the defendant’s claim.” Armstrong, 517 U.S. at 464. So too have our discovery requests. See Ex. 2 (10/23/23 Requests 10-12, 24, 39-40, 43, 55).

The requests he points to are:

Conduct alleged in the indictment, and responses by witnesses described in the indictment (as well as a letter he includes with this filing, showing two prosecutors in this case attempted to persuade Bill Barr to adhere to normal procedures after the election).

11. Please provide all documents related to views and opinions expressed by Department of Justice personnel, including from the Public Integrity Section and National Security Division, discouraging, disagreeing with, or resisting investigations of election fraud, interference (including foreign interference), anomalies, or irregularities related to the 2020 election.

12. Please provide all documents related to or reflecting decisions by the Department of Justice, federal law enforcement, state law enforcement, election officials, or other government officials declining or refusing a review or investigation of election fraud, interference (including foreign interference), anomalies, or irregularities related to the 2020 election.

Advice from Steve Engel (who would go on to join in an effort to thwart Trump’s efforts to replace Jeffrey Rosen with Jeffrey Clark), any of which Trump relied upon he could cite specifically.

24. Please provide all documents, including communications, memorandums, and opinions (whether formal written opinions, drafts thereto, or informal analyses), of the Department of Justice Office of Legal Counsel concerning the Electoral Count Act, election fraud, any litigation related to the 2020 election, or any advice provided directly or indirectly to any Executive Branch official concerning the outcome of the 2020 election.

Any discipline DOJ pursued for Michael Sherwin for violating rules that were routinely violated under Trump.

40. Please provide all documents relating to the March 2021 “60 Minutes” interview of Michael Sherwin, including all documents relating to investigations of potential violations of applicable rules, policies, or procedures resulting from Mr. Sherwin’s participation in the interview.

A known referral of fake electors from Dana Nessel.

39. Please provide all documents relating to the “referrals” referenced by Lisa Monaco during an interview on or about January 25, 2022.

A fishing expedition to get the kind of inflammatory texts that were selectively released during the Russian investigation, to obtain the texts everyone sent on their FBI cell phones).

55. Please provide all documents reflecting statements by any member of the prosecution team indicating an intent or effort to stop or hinder President Trump from becoming President of the United States.

Complaints that, broadly interpreted, could include those from Gary Shapley and Joseph Ziegler that instead show the high level involvement of Trump’s DOJ in the Hunter Biden investigation and the investigators own efforts to conduct the investigation in such a way that it might become public.

10. Please provide all documents relating to complaints or concerns by any prosecutor from DOJ, the Special Counsel’s Office, or any federal law enforcement agent relating to the conduct of the investigations of President Trump, the 2020 election, or President Biden.

A request for communications that, the NYT article he relies on, says don’t exist: “coordination” between Biden and DOJ or the Special Counsel’s office. But also a request for communications that might, broadly interpreted, cover the entirety of Hunter Biden’s defense counsel communications with DOJ. (It would also include any victim interviews with Ashley Biden regarding her diary and other personal belongings stolen by Trump supporters.)

43. Please provide all documents relating to communications or coordination by the Special Counsel’s Office and DOJ with any of the Biden Administration, the Biden Campaign, Hunter Biden, the Biden family, the Biden White House, or any person representing Joe Biden. [my emphasis]

DOJ’s criminal prosecutors are not communicating with Joe Biden. They are, however, communicating with Hunter Biden (via his counsel) because Trump’s own US Attorney, now bolstered with Special Counsel status, is prosecuting Hunter Biden. And after having attacked Weiss publicly, Trump is now claiming that he needs Hunter Biden’s communications to prove Donald Trump is being treated unfairly.

The primary thing on which Trump relies to make a claim he’s being treated unfairly instead supports the opposite claim: That Merrick Garland is treating him better than he and his DOJ treated Joe Biden’s son. But in his effort to claim he wasn’t simply inventing all this, Trump revealed that even in this prosecution, he’s attempting to interfere in Hunter Biden’s prosecution.

The Former President’s Spaghetti-Wall Assault on the Truth

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Donald Trump’s team has submitted its reply briefs on motions to dismiss:

I reiterate the analysis I have made here and here: these motions (plus the Motion to Strike that Judge Chutkan already rejected), taken together, don’t so much attempt to argue about Trump’s conduct. Instead, they try to separate out the conspiracies alleged and the mob that was central to it from a claim that Trump has a right to lie, a right to repeat false claims about the 2020 election no matter how many times those false claims have been debunked in court.

Trump made no effort to address certain key claims. As one example, Trump didn’t mention prosecutors’ observation that Trump couldn’t have a Double Jeopardy claim from Impeachment given that this indictment does not charge him with what Congress did, incitement.

Perhaps recognizing what I pointed out here — that Trump had simply ignored the way in which he used the mob to obstruct the vote certification, he includes a new section in it. But it was lifted from his reply brief on the Motion to Strike that already failed.

January 6.

The prosecution next repeats its false claim that President Trump “directed a large crowd of supporters, whom he knew to be ‘angry’ based on his election fraud lies, to go to the Capitol and obstruct the proceeding.” Doc. 139, at 19. But the indictment does not charge President Trump with any responsibility for the events of January 6, and rightly so. As set forth in detail in Doc. 156, President Trump encouraged the crowd marching to the Capitol to “peacefully and patriotically make your voices heard” and to “cheer on our brave senators and congressmen and women.”6 President Trump made clear that he expected to watch the electoral certification proceedings take place as planned that day. Id. And President Trump repeatedly denounced destruction of monuments and other symbols of American democracy, and he reminded the crowd that criminal penalties he signed into law for such actions. Id.

As the indictment itself alleges, the crowd gathered at the Capitol before President Trump finished speaking. Doc. 1, ¶ 107. The crowd already at the Capitol “broke through barriers cordoning off the Capitol grounds and advanced on the building” while President Trump was speaking. See id. The indictment does not mention that the 1,200 people who entered the Capitol was less than 1% the size of the crowd gathered to listen to President Trump, and that at least 99% of the crowd gathered to listen to President Trump did not enter the Capitol. William M. Arkin, Exclusive: Classified Documents Reveal the Number of January 6 Protestors, NEWSWEEK (Dec 23, 2021), https://www.newsweek.com/exclusive-classified-documents-reveal-number-january6-protestors-1661296. 7

And having belatedly attempted to address the mob, Trump nevertheless shamelessly claimed that the people he lied to were sophisticated enough to see through his lies.

President’s Trump’s listeners—including the sophisticated elected officials described in the indictment—were free to agree or disagree with President Trump’s views, and the prosecution does not allege otherwise.

Hundreds of January 6 defendants — conservatively — have explained that they pissed away their lives that day because they believed Trump’s lies. Trump’s reply briefs effectively amount to the argument that his First Amendment rights extend to being completely unmoored from any anchor to the truth, his First Amendment rights permit him to deliberately unmoor the truth to mobilize an attack on the country.

Perhaps unsurprisingly, I came away from a quick read of these filings exhausted, the exhaustion deliberately cultivated by the gaslighter. I could — I still might — go back and unpack every one of the gimmicks his attorneys have thrown at Judge Chutkan, like spaghetti at a wall. But ultimately it amounts to a demand that Trump be treated not just as above the law that the hundreds of his mobsters have already been held accountable to, but also above the truth.

Perfect Phone Calls: Redefining Vindictive Prosecution in the Trump Era

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On July 26, AUSA Leo Wise had this exchange with Maryellen Noreika, the judge presiding over the Hunter Biden case.

THE COURT: I have had one or two cases involving a person struggling with addiction who bought a gun, we usually see a felony charge for false statement.

The Defendant has admitted that his statement was false, but he wasn’t charged. Again, I’m not trying to get into the purview of the prosecutor, and I understand the separation of powers, it’s in your discretion, but I just want to ask, does the government have any concern about not bringing the false statement charge in light of our discussion of 922(g)(3) and the constitutionality of that charge.

MR. WISE: No, Your Honor.

Less than three hours later, after Wise revealed that prosecutors had a different understanding of the immunity provision in the plea deal than Hunter’s lawyers did, Hunter Biden pled not guilty to two misdemeanor tax charges.

Hunter Biden faces stiffer penalties after exercizing a constitutional right

Hunter Biden exercised his constitutional right to plead not guilty to a plea deal that wasn’t what he had understood it to be.

Exactly 50 days later, Leo Wise and Derek Hines obtained an indictment charging Hunter Biden with three crimes under 18 USC 922: the original charge for possessing a gun as an addict — 922(g)(3) — along with two false statement charges 922(a)(6) and 924(a)(1)(A) that Wise had said less than two months earlier prosecutors didn’t intend to charge. Then, the government dismissed the previous diversion agreement that charged Hunter solely with 922(g)(3).

Whereas on July 26, Hunter faced the possibility of avoiding any jail time for the gun crime and, even if he failed to fulfill the terms of his diversion, he faced a maximum of 10 years, as of September 14, on paper he faces 25 years. (In reality he would face a fraction of this and the total exposure is similar.) Hunter Biden faces those formally stiffer penalties even though AUSA Wise told Judge Noreika that the gun diversion was, “a contract between the parties so it’s in effect until it’s either breached or a determination, period.”

The sharply increased penalty that Hunter Biden faces after agreeing to a diversion agreement but then pleading not guilty to tax charges may be a key dynamic in motions we’ll see in weeks ahead.

What Abbe Lowell said we could expect

Between the arraignment and his bid for a Trump subpoena, Hunter Biden’s lawyer Abbe Lowell has set expectations about what will occur between now and submission of pretrial motions on December 11.

He has asked for “Brady and other discovery,” but as of last week, “the defense has not received such material [about the targets of his subpoena request] in discovery from the prosecution or elsewhere, notwithstanding specific discovery requests and that some of this information likely resides with the DOJ.”

He said he expected to request an evidentiary hearing, which will presumably be tied to one or more motions to dismiss the indictment.

He described that those motions to dismiss would argue:

  • The gun charges are unconstitutional
  • The diversion agreement prohibits these charges
  • A selective and/or
  • Vindictive prosecution claim

The motion to dismiss the gun charges on constitutional grounds will associate this case with other similar challenges already wending their way towards SCOTUS. Whatever Noreika decides to do about it, it will mostly delay resolution of this case as those appeals proceed.

Lowell, and before him Chris Clark, have repeatedly said that Weiss could not indict Hunter on the gun charges because the diversion agreement remains in effect. I’m not sure how Lowell will make the argument that DOJ has effectively breached a “bilateral contract,” though it may also play a part in a vindictive prosecution claim, as I describe below.

Selective prosecution arguments almost never work. It would have to lay out evidence that there were similarly situated people — who purchased a gun without disclosing their addiction but, absent some other crime tied to the gun, were not charged. It is not enough to point to abundant data showing that this charge is rarely charged (as a number of journalists have laid out), which, if he files such a motion, Lowell would surely have. You also have to argue that you were charged only because you’re a protected class, which historically has meant racial discrimination. While (as Carissa Byrne Hessick recently laid out when Trump tried a selective prosecution claim) people have tried to say they were selectively prosecuted because of their political views, that hasn’t worked yet. And you could as easily argue that Hunter was being charged because he is the son of the guy who championed these drug and gun laws in the first place as you could that he was being charged because he is the President’s son — goodness knows the 2A crowd would make that argument.

One of the only reasons such a motion might work here where it would otherwise not is because there are people — thus far speaking anonymously to the press — who have stated that Hunter was charged only because he is who he is. For example, Glenn Thrush described that,

When officials with the federal Bureau of Alcohol, Tobacco, Firearms and Explosives reviewed Hunter Biden’s gun application several years ago, they believed the case most likely would have been dropped if the target were a lesser-known person.

And NYT described, in a story including Thrush, that,

Mr. Weiss told an associate that he preferred not to bring any charges, even misdemeanors, against Mr. Biden because the average American would not be prosecuted for similar offenses.

If Lowell can find these witnesses — experts on gun crimes who said Hunter was charged only because he was prominent and a Weiss associate whom Weiss purportedly told he knew that average Americans would not be prosecuted for such crimes –and get them to testify, then he would have what virtually no other defendant would: Proof that the prosecutor who brought the charge knew that similarly situated defendants would not be charged, but charged the defendant anyway.

Vindictive prosecution bids almost never work pre-trial

It’s Lowell’s mention of a possible vindictive prosecution claim that I revisited after reading his subpoena request and writing this post.

Normally, vindictive prosecution claims argue that a prosecutor retaliated against a defendant because they exercised a constitutional or statutory right. As mapped out above, Lowell might argue that David Weiss ratcheted up the gun charges against Hunter — 25 years of exposure instead of a diversion agreement — because he exercised his right to plead not guilty on the tax charges.

But that argument would be thwarted by several precedents that limit the ability of a defendant to plead vindictive prosecution, especially pre-trial. Bordenkirscher basically held that making dickish threats as part of plea negotiations is not vindictive prosecution. Goodwin made it much harder to argue that a prosecutor’s decision to ratchet up charges in response to a defendant’s decision to go to trial was presumptively vindictive, basically holding that the prosecutor may have, instead, added charges out of some societal interest in the prosecution.

You can see how this works in the case of Hatchet Speed, based on facts — involving felony gun charges in one district and the addition of a felony charge to a misdemeanor in another — not dissimilar from Hunter’s case. On January 6, Speed was an NRO contractor with TS/SCI clearance and a Naval reservist still training at Andrews Air Force Base. He had ties to the Proud Boys and expressed a fondness for Hitler. He went on a $50,000 weapon buying spree after January 6, including devices that — prosecutors successfully argued in a second trial — qualified as silencers under federal law. He was charged for unregistered silencers in EDVA and, at first, misdemeanor trespassing charges for his actions on January 6. Between the time his first EDVA trial ended in mistrial and a guilty verdict in his retrial, DOJ added a felony obstruction charge in DC, which his excellent FPD attorneys argued was retaliation for the mistrial. But DOJ responded with an explanation of the process leading to the addition of the felony obstruction charge: they added a second prosecutor, got better at prosecuting obstruction for January 6, found some more damning video of Speed at the Capitol, and came to recognize how Speed’s comments about the attack would prove the corrupt intent required for obstruction charges. They were pretty honest that they regarded Speed as a dangerous dude that they wanted to put away, too.

The same process might well happen if Lowell files a vindictive prosecution claim. Under Goodwin, Weiss might have to do little more than say there was a societal interest in jailing Hunter Biden to affirm the import of the gun laws his father continues to champion.

As with the selective prosecution claim, some facts exist with the Hunter Biden prosecution that might distinguish this from all the other impossible claims of vindictive prosecution. Most important is the contested status of that diversion agreement, about which both sides made conflicting claims during the failed plea hearing. If Noreika credits it as a bilateral contract between the two sides, as both Wise and Clark claimed it was at points during the hearing, then she might treat a vindictive prosecution claim as an abrogation of a contract followed by the ratcheting up of charges. If Noreika links it to the tax plea, as both sides described it as at different points in that hearing, then the question of whether Weiss reneged on the larger plea becomes an issue, but which might make this just a case of dickish threats covered by Bordenkirscher.

There’s also the fact that Weiss will have to come up with an explanation of why he and Leo Wise thought pretrial diversion was in the societal interest on June 20, why Leo Wise thought false statement charges were unnecessary on July 26, but then decided felony prosecution, including on two false statements charges, was in the societal interest on September 14. This is why Abbe Lowell keeps repeating,

no new evidence related to these charges emerged between June 20 (when the plea deal was first presented to the Court) and July 26 (when the prosecution reneged on its deal), and in fact only more favorable case law on this issue has developed since then.

While there was more evidence in Speed’s case (newly discovered video from the Capitol), mostly prosecutors just argued the evidence looked different as other obstruction cases unfolded.

Lowell is arguing that the only thing that explains why the five year old evidence against Hunter Biden might look different in September than it did in June is because of the political pressure brought to bear on Weiss, and maybe the threats that both Weiss and Thomas Sobocinski have described to the House Judiciary Committee that was significantly responsible for the threats.

That would make this a political influence and violent threats case, not a vindictive prosecution case — possibly a different kind of motion to dismiss on Due Process grounds, but not a vindictive prosecution case. Normally, though, prosecutors have lots of tools to exclude that kind of thing.

Vindictiveness on a much grander scale

Which brings me to Lowell’s request to serve subpoenas on Donald Trump, Bill Barr, Jeffrey Rosen, and Richard Donoghue, which first sent me down this rabbit hole.

Consider the timing. The November 15 filing makes an impossible request; it asks for subpoena returns by December 1.

Defendant Robert Hunter Biden, through his counsel, respectfully moves this Court to enter an order directing that subpoenas duces tecum be issued to the following individuals—Donald John Trump (“Mr. Trump”); William P. Barr (“Mr. Barr”); Richard Donoghue (“Mr. Donoghue”); and Jeffrey A. Rosen (“Mr. Rosen”)—pursuant to Rule 17(c) of the Federal Rules of Criminal Procedure, and that each subpoena recipient be required to provide any responsive documents and materials by December 1, 2023, to allow Mr. Biden sufficient time to review the material in advance of any necessary pre-trial motion, evidentiary hearing, and/or trial.

Thus far, Judge Noreika has not ordered Weiss to respond, but if they do in normal order and Lowell replies, this thing wouldn’t be fully briefed until December 6. Lowell couldn’t possibly expect subpoena returns, even assuming any of those served would respond without legal challenge, until after the new year.

The motion reviews the standard for subpoenas and admissibility at length, but as Popehat noted in a piece that otherwise got many of the facts of this case (such as the role of Biden officials in it) wrong, it doesn’t brief how Lowell would be able to use these records. Lowell mentions vindictive or selective prosecution but doesn’t, yet, make a case for it. Lowell cites just one precedent for obtaining subpoenas for use in pretrial filings, as opposed to at trial.

Lowell doesn’t mention Armstrong, the precedent that usually makes it impossible for defendants to get discovery in selective prosecution challenges. But that may be instructive. Before Lowell is making a request for discovery based on a selective and/or vindictive prosecution claim, he is first asking for subpoenas, without fully laying out whether this would be a selective or vindictive or political influence prosecution claim.

Instead of arguing Armstrong, Lowell instead notes that he knows these records actually exist. “Before the government intones its stock phrase, this is no fishing expedition.”

On that point, he’s right. There are records responsive to these subpoenas. But it’s worth looking at what they are, what else would be included if he got full response to these subpoenas.

The subpoenas ask for any communications provided to the January 6 Committee mentioning Hunter Biden (request 4). The request cites Richard Donoghue’s notes of Trump referencing the Hunter Biden prosecution. I’m fairly certain those notes came from the Archives; they were the subject of a special waiver of Executive Privilege back in July 2021. For a variety of reasons, finding similar such notes at the Archives would be virtually impossible without another Executive Privilege waiver, a waiver that because of the conflict, would have to come from Trump, not Biden.

The subpoenas ask for any personal records, such as diaries, that, “reference to any formal or informal decision, discussion, or request to investigate or prosecute Hunter Biden” (request 3). If Donoghue’s notes were not treated as official documents, those would be included. Any drafts of Bill Barr’s book or notes that formed the basis for it, also cited in this motion, would also be included. In the subpoena request, Lowell cites to this WaPo story for Barr’s quote about Trump’s harassment, in which DOJ beat journalist Matt Zapotosky attributes Trump’s comments to Barr based on the fact that Hunter’s, “name was in the news because of the discovery of a laptop belonging to him.”

The full reference in the book describes Will Levi witnessing the call, which raises questions about whether he was on the call taking notes (as Richard Donoghue was during the December 27, 2020 call) rather than standing by, listening to just one side of the conversation as described in the book.

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

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

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

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

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

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

A month after the election, the Washington Post reported that there was already an investigation of Hunter Biden under way when I started as Attorney General and that this fact was never leaked. The President never confronted me about that report directly, but I had heard he was angry that I didn’t say anything after the presidential debate in which Biden falsely suggested the relevant e-mails on his son Hunter’s laptop may have been placed there by the Russians. Biden’s bogus statement relied on a letter published a few days before by a coterie of retired intelligence officials who had lost their professional bearings and lent their names to partisan hackery. Their claim was exposed a few days later when the FBI, together with John Ratcliffe, the director of national intelligence, made clear there were no grounds to think the laptop’s damning content reflected foreign disinformation. But, of course, the media, having heralded the letter’s fictitious claims, stayed mostly quiet about its debunking. The damage was done. Biden got away with deception. And Trump thought I was to blame.

This, as well as other Hunter Biden references in the book, are fundamentally incompatible with Barr being personally involved in the Scott Brady project, including having personal knowledge of the circumstances by which Donoghue ordered the FD-1023 to be shared with the Hunter Biden team within ten days of this conversation.

But the degree to which Barr conducted Ukraine-related issues — not to mention a reference to sending Barr a laptop the day after FBI received a laptop believed to have been owned by Hunter Biden — on his personal cell phone would suggest he may have far more, and far more forthright, records about his knowledge of the Hunter Biden investigation in his personal possession. Those would be covered by the subpoena request for communications with, “any Executive Branch official, political appointee, Department of Justice official, government agency, government official or staff person, cabinet member” (request 2).

Trump too would have, “communications…discussing any formal or informal investigation or prosecution of Hunter Biden, including, but not limited to, any decision, referral, or request to investigate or not investigate or charge or not charge Hunter Biden” (request 1). Lowell includes eight examples in his motion: social media posts, four from during Trump’s term and four during the period between the posting of the plea and the failed plea deal.

Those are easy. The records exist, including records over which Trump could invoke no conceivable privilege.

Abbe Lowell is not making up his claim that the top officials at DOJ and Donald Trump communicated about this investigation. He’s not even making up the insinuation that some were intimately involved in efforts to filter dirt, potentially including from Russian agents, into the investigation of Hunter Biden. Scott Brady has already confessed to that.

But one detail of the subpoenas hints at where this could go: In addition to requests for communications with government officials about prosecuting Hunter Biden, it also requests for communications with any, “attorney for President Trump (personal or other) discussing or concerning Hunter Biden” (request 2).

These subpoenas ask for communications with Rudy Giuliani about Hunter Biden.

While the DOJ people may have insulated themselves from direct contact with Rudy (for example, Barr spoke with Victoria Toensing about Dmitry Firtash and the Brady project was set up through Robert Costello), Trump would have a gold mine of contacts with Rudy, including about the “Hunter Biden” “laptop.” He might claim privilege over those.

You know what other communication Trump had, “discussing any formal or informal investigation or prosecution of Hunter Biden” (request 1)? The perfect phone call with Volodymyr Zelenskyy, including — to the extent it still exists — the version in which Zelenskyy named Burisma explicitly, the version in which Trump referenced recordings of Biden discussing corruption, the kind of thing, Lev Parnas claims, that had already been offered up by Mykola Zlochevsky, the guy who went on to make a new bribery claim about Joe Biden after that call.

What these subpoenas ask for pertains to political influence and threats. But they also ask for evidence of a different kind of vindictive prosecution: Trump’s explicit effort to exact his revenge for the Russian investigation on Democrats, on his Democratic opponent, by investigating Hunter Biden.

That’s a due process violation. But not of the kind covered by all the precedents that make it virtually impossible to prove vindictive prosecution.

Serving notice

These subpoenas seek evidence showing that Trump’s demand for an investigation of Hunter Biden for vindictive reasons reached the team investigating Hunter Biden. These are impossible subpoenas, insofar as they ask for compliance according to an impossible timeline and ask for compliance that may not legally be available (indeed, to the extent Trump has items in his possession, for various reason they may be covered by the Mar-a-Lago protective order). To the extent subpoenas ask for things covered by various privileges, they would pose impossible challenges to overcome. To the extent the subpoenas ask for the perfect phone call in which Trump demanded Zelenskyy’s help with an investigation of Hunter Biden, they are impossible subpoenas because the White House altered that record in real time.

But they are, also, subpoenas for records that undeniably exist, records that incorporate an effort Bill Barr set up to cater to Donald Trump’s personal lawyer that did result in at least one piece of evidence being introduced into the Hunter Biden investigation — Bill Barr’s communications with (!!!) Margot Cleveland would be responsive to his subpoena and would prove that point — records that further show that on at least two occasions, the President of the United States personally berated the Attorney General (or Acting Attorney General) making demands about this investigation.

The subpoena request does one more thing, as well. It notes that under 26 USC 7217, if any of Trump’s demands about this investigation covered a demand for tax prosecution — the kind of tax prosecution still being pursued in California — it would constitute a felony, one that explicitly names the President among those covered by the crime.

For his part, Mr. Trump has made a plethora of concerning public statements calling for an investigation or possible prosecution of Mr. Biden, both while in office and since leaving, that further suggest improper partisan, political demands were at play, either expressly or implicitly. See also 26 U.S.C. § 7217 (making it a felony for the President to request an IRS investigation of an individual).

These may be impossible subpoenas, but they do serve notice.

My guess is that, when and if Weiss responds, he simply says that those big efforts to politicize this investigation are totally separate from this little tiny isolated gun indictment. He may claim he doesn’t follow the Twitter feed of the guy who appointed him anyway — the same excuses Bill Barr made about other demands Trump served on DOJ via Twitter. Weiss may say, with reason, that some of Richard Donoghue’s involvement in this case actually served to ensure the investigation did not influence the 2020 election. But to even broach that subject, he’d have to admit that some of Richard Donoghue’s efforts, such as ordering Weiss’ attorneys to accept a bribery allegation from the head of Burisma made during impeachment, made after Rudy Giuliani solicited dirt from him, possibly in exchange for favors from DOJ that just happened to coincide with the closure of an investigation into him, can in no way be considered such a thing. Weiss may even say that to the extent that he sheep-dipped his prosecution team, swapping Lesley Wolf for Leo Wise, he has further isolated the team from such improper influences, influences that (Joseph Ziegler helpfully revealed) have been documented going back to 2019.

However Weiss responds, that response will precede whatever motions to dismiss — whether it’s selective or vindictive or really vindictive prosecution — that Abbe Lowell ultimately does file.

None of that will change the precedents — Armstrong and Bordenkirscher and Goodwin and others — that make it nearly impossible for defendants to make these arguments.

But there are aspects of this case, both the known evidence (much of it offered up by law enforcement officers whose actions led to threats against the prosecution team) and the legal posture leftover from that failed plea deal, that make the motions to dismiss genuinely different.

This case is, on one hand, a very simple prosecution involving claims Hunter Biden made in his book, the application of a law that his father championed. It is also, however, a test of whether defendants can fight a different kind of vindictive prosecution, the kind Trump demanded and continues to demand.

Thanks to Carissa Byrne Hessick, who generously served as a sounding board for my thoughts leading up to this post. The errors in the post are all mine.

DC Circuit Likely To Narrow Judge Chutkan Gag

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Ruby Freeman was not a public figure until Donald Trump and Rudy Giuliani made her one, until they turned her into the villain of their feverish conspiracy theories about black women and voting. But early on in the appellate hearing on Judge Tanya Chutkan’s gag in the January 6 trial, Trump’s attorney John Sauer claimed there were no people covered by the gag who were not public persons.

That will become important if, as I suspect, the DC Circuit panel of Patricia Millett, Cornelia Pillard, and Bradley Garcia, upholds Judge Chutkan’s gag, but narrows it with regards to public persons. I suspect the court will throw out the gag on Trump comments about prosecutors (but not their family), limit the gag about public people like Mark Milley and Mike Pence to specifics about this trial, but adopt the gag as is for non-public people like Freeman.

Then we’ll have a fight about who counts as a public figure or not.

The most striking thing about the hearing, however, was how aggressively Trump attorney John Sauer dodged any accountability for his client. The judges, especially Millett, asked him a series of hypotheticals to try to get him to lay out a standard that wouldn’t fall astray of the First Amendment. And Sauer kept getting cornered saying, basically, only the clear harm standard could apply to a gag on his client’s speech. Effectively, he was saying that Trump has to be criminally charged with witness tampering rather than gagged. At one point, Sauer suggested that Trump must be permitted to wage this case in the public sphere, that there can be no consideration for the public interest in a fair trial. In another, he got awfully close to arguing that Trump should be treated as a stranger to this case, meaning no restrictions could be imposed, rather than the accused defendant. In a third, Sauer suggested that Trump must be permitted to run for election on a campaign of threats against his adversaries. Over and over, Sauer argued that Trump should be permitted to say things publicly — at campaign rallies or on his failing Social Media site — that Sauer he agreed would be prohibited under the gag order if he did it on the phone with a witness.

I doubt this will be a winning argument before the DC Circuit. But Sauer is really making a play for Clarence Thomas and Sam Alito, not Patricia Millett.

Update: Fixed reference to Sauer as Lauro.

David Weiss’ FBI FARA Headfake to Create a Hunter Biden Tax Mulligan

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Last week, CNN reported that the President’s brother, James Biden, is among some number of people who have received a grand jury subpoena for ongoing investigations into Hunter Biden. The investigative steps are unsurprising. As I noted, David Weiss spoke with Los Angeles US Attorney Martin Estrada on September 19 of this year about something that “goes to an ongoing investigation.”

According to materials released by Joseph Ziegler, the IRS interviewed James Biden on September 29, 2022, the last interview in the investigation before the failed plea deal. He was asked about a range of topics: a payment he received from Owasco before he was working with them, his and Hunter’s interactions with CEFC, Hunter’s relationship with Kevin Morris, and about several dodgy people whom Hunter paid in 2018 — payments he wrote off on his taxes. Prosecutors had discussed at least two of those people with Hunter’s legal team during the summer in 2022.

James Biden’s September 2022 interview was voluntary, suggesting investigators obtained any documents discussed in the interview — all but two of which appear to predate April 2019, and so might be among the non-Google materials that investigators first obtained from the laptop provided by John Paul Mac Isaac — via other means, including the laptop and warrants obtained downstream of the laptop. Again, any Google content is an exception to this; it appears the IRS obtained the first Google warrant for Hunter’s Rosemont Seneca account before getting the laptop, but it also appears that the government did not obtain things normally available in a Google warrant–such as attachments and calendar notices–with that warrant and so instead relied on the laptop.

As CNN describes, thus far the subpoenas seek documents; it’s unclear whether anyone (besides someone from the new IRS team put on the case after Weiss removed Gary Shapley and Joseph Ziegler) has or will testify in person. There are certainly documents that the IRS didn’t seem to have in last year’s interview with James Biden, such as details of his trips to California in 2018 to try to save his nephew from the throes of addiction.

But it’s also possible Weiss is using subpoenas to obtain records that otherwise would be tainted by the laptop.

When Estrada testified to the House Judiciary Committee about the recommendations about this case his senior prosecutors made in three different reports, recommendations he adopted and conveyed to Weiss in a call on October 19, 2022, he referenced Justice Manual rules. “We look at whether a Federal offense has been committed and whether we believe that there is admissible evidence sufficient to prove to an unbiased trier of fact that an individual has committed an offense beyond a reasonable doubt.” So the quality of evidence obtained in this investigation could be one reason Estrada’s career prosecutors advised him not to partner on this case.

The details about a renewed investigation into Hunter Biden are not surprising — Estrada’s testimony already suggested as much.

More interesting, however, is CNN’s report that the FBI has completed its part of the investigation, pertaining to FARA and money laundering, and expects no charges.

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

That’s important because potential FARA charges are the reason why this case didn’t end in a plea in July — or at least, the excuse David Weiss and his sheep-dipped prosecutor, Leo Wise, referenced to sustain a claim that the investigation was ongoing.

On July 10, in the wake of a Republican uproar about the Hunter Biden plea deal and public comments from Bill Barr about the FD-1023, Weiss told Lindsey Graham that the allegations of bribery Mykola Zlochevsky made, after outreach from Rudy Giuliani and sometime around when Bill Barr’s DOJ dropped their investigation of him, “relate to an ongoing investigation.” That was probably the second clue that Hunter’s legal team got that the investigation they believed had concluded remained (re)open — the first being Weiss’ press release on the charges on June 20. And in the failed July 26 plea hearing, a potential FARA charge is the specific criminal exposure Leo Wise raised which led Hunter to plead not guilty to a deal significantly negotiated by Delaware AUSA Lesley Wolf.

THE COURT: All right. So there are references to foreign companies, for example, in the facts section.

Could the government bring a charge under the Foreign Agents Registration Act?

MR. WISE: Yes.

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

MR. CLARK: Your Honor, the Plea Agreement —

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

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

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

MR. WISE: Then there is no deal.

Leo Wise refused to agree that FARA charges were off the table, even though — if you believe Abbe Lowell’s version of events — Lesley Wolf led Hunter’s team to understand, weeks earlier, that FARA charges were off the table. And based on that, Hunter refused to plead guilty.

That’s what gave David Weiss the opportunity to ask to be made Special Counsel: a claim, made after he had already filed tax and a gun charge on June 20, that he was still pursuing an investigation tied to the FD-1023, which would be bribery and money laundering. That’s what led to the three felony gun charges for owning a gun for 11 days in 2018. And that’s what led to a renewed investigation in Los Angeles. And now, David Weiss is using a Los Angeles grand jury to obtain evidence from James Biden that he didn’t think he needed a year ago.

That potential FARA charge is the excuse Weiss used to limit a deal his office had entered into a month earlier. And now, less than two months into any new investigative focus in Los Angeles, CNN says the evidence doesn’t support FARA charges. That’s not surprising. Joseph Ziegler and Gary Shapley released numerous documents showing Weiss’ team discarded various FARA theories months and years ago (though a CEFC theory was still active as of July 2022).

But it means, at least per CNN, the rationale Weiss and Wise used to sustain the investigation proved short-lived.

That’s important background to Hunter Biden’s request for subpoenas for Trump and others in advance of pretrial motions that Hunter Biden will likely file next month, which I will discuss in more length in a follow-up. Contrary to what some smart commentators, like Popehat, have repeatedly argued, there’s no reason to believe Biden is pursuing this “to develop more evidence that Trump people have it in for him that he can use in future prosecutions,” if Trump returns to the presidency.

Indeed, Abbe Lowell said these subpoenas are, “relevant and material to a fundamental aspect of issues in his defense that will be addressed in pre-trial motions.”

Lowell further explained he needs the subpoenas to figure out whether Weiss’ “change of heart” regarding charges was a “response to political pressure.”

From a Fifth Amendment perspective, it is essential for Mr. Biden to know whether anyone improperly discussed, encouraged, endorsed, or requested an investigation or prosecution of him, and to whom and under what circumstances. The information sought would demonstrate that fact. This is especially true in light of the fact that no new evidence related to these charges emerged between June 20 (when the plea deal was first presented to the Court) and July 26 (when the prosecution reneged on its deal), and in fact only more favorable case law on this issue has developed since then.18 Thus, the prosecution’s change of heart appears to be in response to political pressure, rather than anything newly discovered in the investigation of Mr. Biden. Because such evidence, only some of which has been disclosed already, would tend to undermine the prosecution’s allegation that this case was free from any political inference and was not of a selective or vindictive nature, Mr. Biden’s requests are relevant and material under the requirements of Rule 17(c). [my emphasis]

I imagine that if David Weiss is ever forced to explain what led to the head fake with the plea, he will claim that it had to do with the way he tried to sheep dip the investigation after he decided to charge the case even in spite of Shapley and Ziegler’s efforts to force the issue.

Last December, according to IRS Director of Field Operations Michael Batdorf’s September 12 testimony, Batdorf and Darrell Waldon made the decision to remove Shapley and Ziegler from the Hunter Biden investigation. They didn’t implement it, though, until May, after and because Weiss decided he would charge the case, at which point the IRS assigned a completely new team.

Having an objective set of eyes — complete objective set of eyes on the case where the new investigative team came in and the case is good, the evidence is good, that was something that we just said, let’s — we removed the cooperating revenue agent that was doing tax calculations. We just got an entire new investigative team in there.

[snip]

My concern was the opposite, that if they remained on the case, the case would not go forward

[snip]

It was my interpretation from the phone conversation that we had in December [with Weiss] that there were concerns with the investigation and investigative team, and adding up all those concerns, so having a harder time jumping over that, you know, moving forward with this prosecution.

He never specifically stated that we had to remove the investigative team. He stated that he does not control IRS resources, and he understands that. But part of the concern of moving forward was our investigative team.

[snip]

There was no more investigative activities to take. We can get this to prosecution with a new investigative team.

Partly, this may have just been an effort to avoid having to provide Jencks material, some of which Ziegler and Shapley have since already provided Congress. Even last year, Weiss recognized that Ziegler couldn’t present the revenue assessments at trial that he has spent months sharing with Congress. With a new IRS team, Weiss has secured witnesses who can take the stand without requiring that Weiss share documentation of an obsession with charging Hunter Biden and, frankly, of including his father in the investigation.

It may also be an attempt to insulate any charges from a claim that a law enforcement official found by his supervisor to be making, “unsubstantiated allegations [about Weiss] of motive, intent, and bias” had forced a prosecutor’s decision. After which Shapley and Ziegler have spent months trying to do just that!

But it may not have been just the IRS team. Batdorf described that there had also been a change in AUSA, which would include Lesley Wolf, around the same time.

A It’s my understanding that there had been a change in the AUSA, the prosecution team.

Q And when was the change made? Do you know?

A I believe that was made in roughly — I think it was May or June of this year when we decided to move forward with the investigation.

When staffers asked FBI Special Agent in Charge Thomas Sobocinski in his September 7 interview the same question, he wasn’t sure whether that was true or not. “I don’t know that your statement is factually correct,” Sobocinski responded to an investigator asking why she had been taken off pleadings.

What Sobocinski did know, however, was that Lesley Wolf had received threats. It’s “fair” to say that “she may have concerns for her own safety,” Sobocinski agreed.

Weiss might argue that once Leo Wise took over as AUSA — if that’s what happened — then Weiss left prosecutorial decisions to Wise as a way to insulate charges from claims (made by the IRS agents trying to force more serious charges) that Wolf was biased.

The problem with that is that, on June 7, Lesley Wolf sent out what appears to be the final language on the immunity agreement tied to the plea deal.

Over the course of a few more emails, lawyers on both sides kept line-editing the deal. And on June 7, Wolf sent Clark a version that included the final language shielding Biden from future charges. The language is technical, but it would have immense consequences. Here it is in full:

“The United States agrees not to criminally prosecute Biden, outside of the terms of this Agreement, for any federal crimes encompassed by the attached Statement of Facts (Attachment A) and the Statement of Facts attached as Exhibit 1 to the Memorandum of Plea Agreement filed this same day. This Agreement does not provide any protection against prosecution for any future conduct by Biden or by any of his affiliated businesses.”

The language refers to two different statements of facts; one would accompany the guilty plea and the other would accompany the pretrial diversion agreement. Together, the two statements included substantial detail about the first son’s business dealings and drug use. The statements highlighted his time on the boards of a scandal-dogged Ukrainian energy company and a Chinese private equity fund, as well as his business venture with the head of a Chinese energy conglomerate. Wolf included those statements in her June 7 email.

Wolf was still on the prosecutorial team — and negotiating a plea deal that would have ruled out FARA charges — on June 7.

That’s the same day Weiss sent the first response, to a May 25 letter Jim Jordan sent Merrick Garland about the IRS agents’ complaints of being removed from the investigation. In it, he cited Rod Rosenstein’s explanation to Chuck Grassley in 2018 how congressional interference might politicize an investigation (in that case, the Mueller investigation).

The information sought by the Committee concerns an open matter about which the Department is not at liberty to respond. As then-Deputy Attorney General Rod Rosenstein wrote in 2018 in response to a request for information from the Honorable Charles Grassley, Chairman of the Senate Committee on the Judiciary:

Congressional inquiries during the pendency of a matter pose an inherent threat to the integrity of the Department’s law enforcement and litigation functions. Such inquiries inescapably create the risk that the public and the courts will perceive undue political and Congressional influence over law enforcement and litigation decision.

Less than two months after telling Grassley to butt out, or the public would believe the Mueller investigation faced undue political influence, Rosenstein would grovel to keep his job, assuring President Trump he could “land the plane.” In practice, the reference was not exactly a guarantee of prosecutorial independence, but if Weiss hoped Jordan would understand that, the all-star wrestler didn’t take the hint that corn farmer Grassley took to heart.

Weiss might claim that he replaced Wolf with Wise and in the process had Wise reassess the prior prosecutorial decisions. But, given the date of that letter, there was never a moment he had done so before the political pressure started. David Weiss cannot claim he did so before being pressured by Jim Jordan.

And Jordan’s letter wasn’t the only political pressure. On the same day that Weiss said he couldn’t share information — the likes of which Shapley had already started sharing — because it might politicize an ongoing investigation, Bill Barr (one of the people Lowell wants to subpoena) publicly intervened in the case, insisting the FD-1023 recording Mykola Zlochevsky making a new allegation of bribery had been a live investigative lead when it was shared with Weiss in October 2020, the FD-1023 Weiss specifically said he could not address because it was part of an ongoing investigation.

On a day when Lesley Wolf remained on the case, both Jordan and Barr had already intervened. And because there was never a time that Weiss had replaced Wolf with Wise before the political pressure started, there was little time he had done so before the physical threats followed the political pressure.

In fact, when Congressional staffers asked Sobocinski whether he and David Weiss spoke about Shapley and Ziegler’s testimony after it went public on the day the plea deal was announced, Sobocinski described that both agreed that Shapley’s testimony would have an effect on the case. “We both acknowledged that it was there and that it would have had it had an impact on our case.” But that effect was, to a significant extent for Sobocinski, about the threats that not just investigators, but also their family members, were getting.

I am solely focused on two things, and they’re not mutually exclusive. The first thing is, like every investigation, I want to get to a resolution in a fair, apolitical way. The second thing, and it’s becoming more important and more relevant, is keeping my folks safe. And the part that I never expected is keeping their families safe. So that, for me, is becoming more and more of a job that I have to do and take away from what I was what I signed up to do, which was investigate and do those things. So when you talk about potential frustrations with communication, I am personally frustrated with anything that places my employees and their families in enhanced danger. Our children, their children didn’t sign up for this.

In Weiss’ testimony to HJC, he described threats too. But unlike Sobocinski, he may not have pointed to the effect Shapley’s now debunked claims had in eliciting them.

Weiss said people working on the case have faced significant threats and harassment, and that family members of people in his office have been doxed.

“I have safety concerns for everybody who has worked on the case,” he said.

He added that he doesn’t know what motivates the people who have threatened his team.

“I’ve certainly received messages, calls, emails from folks who have not been completely enamored of my — with my role in this case,” he added, noting that he is also concerned for his family’s safety.

Weiss’ testimony that he wasn’t sure what motivated the people who threatened his team may not help him insulate his case, because Shapley’s testimony likely wasn’t the only likely source of threats.

Among the things Lowell cited in his request for subpoenas were the four Truth Social posts Trump made between the plea deal first was posted and the day the plea failed, one of which criticized Weiss by name and called for Hunter Biden’s death.

Trump Truth Social posts on June 20, 2023:

  • “Wow! The corrupt Biden DOJ just cleared up hundreds of years of criminal liability by giving Hunter Biden a mere ‘traffic ticket.’ Our system is BROKEN!”
  • “A ‘SWEETHEART’ DEAL FOR HUNTER (AND JOE), AS THEY CONTINUE THEIR QUEST TO ‘GET’ TRUMP, JOE’S POLITICAL OPPONENT. WE ARE NOW A THIRD WORLD COUNTRY!”
  • “The Hunter/Joe Biden settlement is a massive COVERUP & FULL SCALE ELECTION INTERFERENCE ‘SCAM’ THE LIKES OF WHICH HAS NEVER BEEN SEEN IN OUR COUNTRY BEFORE. A ‘TRAFFIC TICKET,’ & JOE IS ALL CLEANED UP & READY TO GO INTO THE 2024 PRESIDENTIAL ELECTION. . . .”

Trump Truth Social post on July 11, 2023:

“Weiss is a COWARD, a smaller version of Bill Barr, who never had the courage to do what everyone knows should have been done. He gave out a traffic ticket instead of a death sentence. Because of the two Democrat Senators in Delaware, they got to choose and/or approve him. Maybe the judge presiding will have the courage and intellect to break up this cesspool of crime. The collusion and corruption is beyond description. TWO TIERS OF JUSTICE!”9 [my emphasis]

There is, thanks in significant part to Jim Jordan, abundant documentation that between the time Lesley Wolf first sent out language seemingly promising Hunter Biden he would not be charged with FARA and the time Leo Wise told Judge Maryanne Noreika that he still could be, Republicans started pressuring David Weiss about his decisions. Thanks to Jordan, there are also multiple witnesses who have described that between the time Lesley Wolf shared immunity language and the time when — Abbe Lowell claims — David Weiss reneged on that language, the investigative team started having to fend off credible threats, not just to themselves, but also their family members.

To be sure, between the time Hunter’s lawyers made clear they planned to argue Weiss reneged on a deal and the time Lowell asked for subpoenas, in part, “possibly as impeachment of a trial witness,” Weiss testified that he always planned on continuing the investigation.

At the time, Biden’s lawyers signaled that the deal meant the Justice Department’s probe of the president’s son was over. But, according to Weiss, the investigation hadn’t ended at that point.

“I can say that at no time was it coming to a close,” he said. “I think, as I stated in the one statement I made at the time, the investigation was continuing. So it wasn’t ending there in any event.”

Yet according to CNN, two months after Weiss spoke to Estrada, seemingly to renew investigative activity in Los Angeles, any FARA investigation has ended. Instead, Weiss appears to be conducting new investigative steps in the tax case, investigative steps that started a week after IRS’ head of Field Operations testified that he understood “there was no more investigative activities to take.”

Both David Weiss and Leo Wise have publicly suggested that the ongoing investigation which Weiss insisted to Congress had always been planned was FARA or bribery related. That claim seems to have served no other purpose than to have given themselves a chance to reconsider tax charges both once claimed could be settled with misdemeanor charges.

Update: Batdorf link corrected.

What Matt Viser Won’t Tell You about Hunter Biden, His Dad, and Burisma

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Phil Rucker has wasted yet more journalistic space and time in his obsessive pursuit of Hunter Biden dick pics.

Today, it comes in a 4,800-word piece from Matt Viser rehashing what we already knew about Hunter Biden trading on his father’s name — a piece that couldn’t manage to find space to include specific emails where Hunter told potential business partners he would not lobby for them, as he told Vuk Jeremic in 2016 when they were discussing gas deals in Mexico: “[A]s I have also said many times I won’t  engage in I [advocating] on your behalf with my father or anyone else in the USG.”

Viser, who seems to think he is clever, ends his piece with an exchange between Hunter and his business partner, Devon Archer. Archer complains that Joe Biden didn’t step in and make Archer’s legal troubles go away.

“Why did your dad’s administration appointees arrest me and try to put me in jail? Just curious,” Archer asked in a text message, in an exchange found on a copy of Hunter’s hard drive and verified by a person familiar with it. “Why would they try and ruin my family and destroy my kids and no one from your family’s side step in and at least try to help me. I don’t get it.”

Archer declined to comment on the exchange.

“Buddy are you serious,” Hunter responded, going on to explain the role of an independent Justice Department and the need for checks and balances.

“It’s democracy. Three co equal branches of government,” he wrote. “You are always more vulnerable to the overreach of one of those Co equal branches when you are in power.”

Viser apparently didn’t find space — not in 4,800 words — to mention what Chuck Grassley and Scott Brady just revealed: According to Grassley, in 2016, while Biden was Vice President and his kid was on the board of Burisma, DOJ opened a corruption investigation into Mykola Zlochevsky.

[I]n December 2019, the FBI Washington Field Office closed a “205B” Kleptocracy case, 205B-[redacted] Serial 7, into Mykola Zlochevsky, owner of Burisma, which was opened in January 2016 by a Foreign Corrupt Practices Act FBI squad based out of the FBI’s Washington Field Office.

Again, according to Grassley, this investigation was opened when Biden was VP and Hunter was on the board of Burisma. It was closed (according to Grassley) in December 2019, even as Trump defended himself against impeachment by claiming that it was important to investigate claims of corruption related to Burisma.

Opened in January 2016. Closed in December 2019. Is that clear enough for you to understand, Matt?

And just weeks later, starting on January 3, 2020, Bill Barr set up a means to insert information Rudy Giuliani obtained — according to Lev Parnas, including from Zlochevsky — into the Hunter Biden investigation. The FD-1023 at the core of Republican efforts to gin up impeachment, one that records a claim Zlochevsky appears to have made in late 2019 that conflicts with what Zlochevsky said in spring 2019, has its roots in the corruption investigation into Zlochevsky opened during the Obama Administration and closed as Trump publicly staked his presidency on a claim to care about Burisma corruption.

The investigation into Zlochevsky got closed (again, per Grassley). And Zlochevsky made a claim that conflicted with his past claims about Hunter Biden. Both happened in roughly the same period.

I’m not sure how Viser didn’t consider that worthy of inclusion in his little story. Nothing demonstrates the irony he seemed to be chasing so much as that the investigation opened while Joe Biden was Vice President is now being weaponized by people like Viser while Biden is President.

Perhaps Viser and Rucker didn’t think that new news was worth sharing, because doing so would make it clear that the entire campaign against Hunter Biden — Viser’s little journalistic hobby that Rucker pays him for — has its roots in the fact that the Obama Administration didn’t protect even Joe Biden’s kid. Sharing that news would require thinking about how the WaPo’s Hunter Biden obsession routinely exhibits the kind of corruption they claim to be exposing.

And so you won’t find that in Viser’s 4,800-word story.

Update: Two more comments about what a corrupt person Viser is.

First, this story seems to be based on Devon Archer’s bid to provide testimony again, which his attorney offers to do in the story. It comes as DOJ just obtained an extension to brief his appeal before SCOTUS. As such, it could be read as an implicit threat from Archer that if President Biden doesn’t keep him out of jail, he will become a bigger political problem then he already is.

Second, as Viser has done in the past, he ignores statements from Abbe Lowell — such as that Tony Bobulinski lied to FBI — relevant to his recycling of certain of these emails (in this case, 10% for Big Guy).

Judge Rules Trump Had the Purpose of Inciting Insurrection on January 6

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Thus far, I haven’t engaged with the lawsuits attempting to keep Trump off the ballot under the Fourteenth Amendment. I think people absolutely have the right to make the case Trump’s actions on January 6 disqualify him from being President. But the only decisions that will matter on this front are what various Supreme Courts have to say and whether the Republican Party chooses to nominate Trump notwithstanding the risk he’ll be disqualified (to say nothing of whether Trump is disqualified in one of the six states that will really decide the election).

But Colorado Judge Sarah Wallace’s opinion finding that Trump did engage in incitement, but can’t be disqualified because the President is not clearly an “officer” under the Fourteenth Amendment, is worth reading.

The Court concludes, based on its findings of fact and the applicable law detailed above, that Trump incited an insurrection on January 6, 2021 and therefore “engaged” in insurrection within the meaning of Section Three of the Fourteenth Amendment. First, the Court concludes that Trump acted with the specific intent to disrupt the Electoral College certification of President Biden’s electoral victory through unlawful means; specifically, by using unlawful force and violence. Next, the Court concludes that the language Trump employed was likely to produce such lawlessness.

[snip]

The Court concludes that Trump acted with the specific intent to incite political violence and direct it at the Capitol with the purpose of disrupting the electoral certification. Trump cultivated a culture that embraced political violence through his consistent endorsement of the same. He responded to growing threats of violence and intimidation in the lead-up to the certification by amplifying his false claims of election fraud. He convened a large crowd on the date of the certification in Washington, D.C., focused them on the certification process, told them their country was being stolen from them, called for strength and action, and directed them to the Capitol where the certification was about to take place.

[snip]

His inaction during the violence and his later endorsement of the violence corroborates the evidence that his intent was to incite violence on January 6, 2021 based on his conduct leading up to and on January 6, 2021. The Court therefore holds that the first Brandenburg factor has been established.

[snip]

The Court holds there is scant direct evidence regarding whether the Presidency is one of the positions subject to disqualification. The disqualified offices enumerated are presented in descending order starting with the highest levels of the federal government and descending downwards. It starts with “Senator or Representatives in Congress,” then lists “electors of President and Vice President,” and then ends with the catchall phrase of “any office, civil or military, under the United States, or under any State.” U.S. CONST. amend. XIV, § 3.

[snip]

As a result, the Court holds that Section Three of the Fourteenth Amendment does not apply to Trump.

Wallace’s opinion is best understood as a punt to Colorado’s Supreme Court: a finding of facts which they will eventually decide how to apply. She says as much in a footnote: She made the finding of fact that Trump did engage in insurrection so the Colorado Supreme Court can resolve any appeal without coming back to her.

The Court is denying Petitioners the relief they request on legal grounds. Because of the Parties’ extraordinary efforts in this matter, the Court makes findings of facts and conclusions of law on all remaining issues before it. The Court does so because it is cognizant that to the extent the Colorado Supreme Court decides to review this matter, it may disagree with any number of the legal conclusions contained in this Order and the Orders that precede it. The Court has endeavored to give the Colorado Supreme Court all the information it needs to resolve this matter fully and finally without the delay of returning it to this Court.

But it’s also a preview of Trump’s January 6 trial.

Perhaps the most interesting aspect of Wallace’s ruling is that she found, over and over, that Trump’s side did not present evidence to fight the claim of insurrection. Trump’s legal expert, Robert Delahunty (who contributed to some of the most outrageous War on Terror OLC opinions), presented no definition of insurrection that wouldn’t include January 6. Kash Patel presented no evidence to back his claim that Trump intended to call out 10,000 members of the National Guard. Trump presented no evidence that criminal conviction was required before disqualification. There was no evidence presented that Trump did not support the mob’s purpose.

Once Wallace dismissed Kash (and Katrina Pierson’s) claims that Trump intended to call the National Guard, all Trump had left was Brandenburg: a claim that his speech did not count as incitement, the same claim Trump has made in his efforts to defeat gags, the same claim Trump attempted to use to get Judge Chutkan to throw out any reference of the mob in his January 6 indictment.

Wallace used three things to show that Trump did intend to incite the mob.

First, she relied heavily on the testimony of Chapman University (!!!) professor Peter Simi, who described how Trump used the coded language of the far right to endorse violence. She mapped out what Trump added into his January 6 speech. And she talked about how Trump’s later statements — about Pence, and telling the mob he loved them — ratified their violence (an argument Amit Mehta also made), which Wallace used to distinguish Trump from Charles Evers.

As I have shown, Trump has tried to simply wish away the role of the mob in his indictment, a wish that Tanya Chutkan already rejected. Judge Wallace’s opinion makes it clear that’s all Trump has.

Judge Chutkan Denies Trump’s Bid to Disavow His Mob

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In a short order, Judge Tanya Chutkan denied Trump’s motion to strike all the language about his mob in his indictment. Her order was so short for two reasons: first, Trump hadn’t really addressed the issue of prejudice he was invoking, and second, the only means by which the indictment itself would introduce prejudice — in the jury room — won’t happen because Judge Chutkan never provides the indictment to they jury.

Defendant’s sixteen-page Reply In Support of the Motion, despite making numerous inflammatory and unsupported accusations of its own, see, e.g., ECF No. 156 at 7 (“President Biden directed the Department of Justice to prosecute his leading opponent for the presidency through a calculated leak to the New York Times.”), devotes only a single paragraph to the prejudice requirement. His sole argument is that even if the jury does not receive a copy of the indictment, “[v]oluminous evidence exists here that the jury pool has been, and continues to be, exposed to the Indictment and its inflammatory and prejudicial allegations, through media coverage relating to the case.” Id. at 16. But Defendant fails to cite even one example of that evidence.

Her reference to Trump’s own inflammatory comments called out something that is apparent in reading his reply brief to overturn her gag before the DC Circuit (which largely rehashes the same tired arguments). There, he argues that he has a First Amendment right to say whatever he wants — about Joe Biden, about the trial, about anyone else, including Chutkan, the death threat against whom Trump disclaims any role.

The prosecution describes President Trump’s statement, “If you go after me, I’m coming after you,” as a “public threat,” Resp.Br.4 (citing J.A.79). However, this statement made no reference to this case, and his campaign explained that it was made “in response to … special interest groups and Super PACs.” App.Br.15 n.7. The prosecution ignores this explanation—the only evidence of what the statement was actually referring to—and relies instead on naked speculation.

The prosecution implies that this statement caused a random person to threaten the district judge on August 5, 2023. Resp.Br. 5-6. Again, this is pure speculation, and wrong to boot. As noted above, President Trump’s statements criticizing the district judge came after the August 5 incident. J.A.79-80. The prosecution also cites no evidence that this random individual was inspired to act by President Trump’s August 4th social-media post, which did not even reference this case.

For what it’s worth, while he didn’t mention Trump, the father of Abigail Jo Shry, the woman who called Judge Chutkan’s chambers and threatened her, described that Shry’s threats were always responses to watching the news.

Defendant’s father, Mark Shry testified at the detention hearing. Mr. Shry believes that Defendant is a non-violent alcoholic. He testified that she sits on her couch daily watching the news while drinking too many beers. She then becomes agitated by the news and starts calling people and threatening them. Mr. Shry stated that his daughter never leaves her residence and therefore would not act upon her threats.

Even in his reply brief, though, Trump made new threats, attacking Jack Smith’s spouse because she exercised her political rights to donate to Joe Biden.

Judge Chutkan didn’t quite say it: But Donald Trump is simultaneously claiming he has the right to make any threats he wants, but no one else has the right to describe the way his threats lead to violence.

She didn’t quite say it.

But she did make it quite clear that Trump is trying to have a protected privilege to make inflammatory threats, while gagging others about the effect of them.

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